HKSAR v. Cheng Ying Kit

DCCC 367/2020

[2020] HKDC 1151

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 367 OF 2020

________________________

________________________

________________________

Reasons for Decision

________________________

Issues

1.The ultimate issues to be decided in this written decision are whether in the circumstances, “slip rule” applies and whether this Court was functus officio when the certificate of sentence was delivered to the Correctional Services Department (CSD). 

Background leading to the issues

2.By the letter dated 17^th November 2020, the prosecution expressed in gist that this Court has been functus officio once the certificate of sentence was delivered to the CSD nor “slip rule” applies in the circumstances of this case.  By the letter dated 24^th November 2020, this Court expressed its preliminary views and invited the parties to give further comments.  This Court’s preliminary views are similar to the analysis hereunder.

3.By the letters dated 30^th November 2020 from the parties, having had the benefit of reading my preliminary views, it seems that both parties agreed that I could apply the slip rule to amend the sentence.  The proposition on the relevant time of functus officio remains to be tested.  As a result, I could simply amend the sentence under the “slip rule”.  However, as a matter of judicial transparency, I am duty bound to give reasons for my rulings after discussion.

Circumstances of this case

4.On 12^th November 2020, the defendant was sentenced to 42 months’ imprisonment upon his guilty plea and admission of facts on 3 charges, in particular, on the 1^st charge which is “conspiracy to traffic in dangerous drugs (“DD”)”.  In the said hearing, before this Court pronounced the reasons for sentence orally, the parties were given the draft reasons for sentence.  After giving oral reasons for sentence, parties confirmed verbally the calculation of DD and sentence is correct.  Certificate of sentence was issued later that day. 

5.On 13^th November 2020, upon checking the draft reasons for sentence for the purpose of delivery the written reasons under section 80 of the District Court Ordinance, this Court discovered that this Court dealt with the quantity of DD before and after arrest as if they were made under separate charges.  This Court sent messages to the parties by fax on 13^th November 2020 seeking to amend the certificate of sentence under the slip rule as the draft did not reflect the manifest intention of this Court. 

6.On 16^th November 2020, the defence agreed to the proposal. 

7.By the letter dated 17^th November 2020, the prosecution expressed that this Court has been functus officio since the said certificate of sentence was delivered to the CSD: HKSAR v CHU kin-yuen [2008] 1 HKLRD 405 and HKSAR and Alvarez Iuvie Agbayani CACC 114/2007. 

8.The parties have made their positions and views clear.  It is obvious that I adopted similar approach regarding invitation for submission on the issue of functus officio: In HKSAR v Yeung Shing Sang (楊勝生) CACC 374 /2013 dated 27 May 2016, it is said that:

“As a result, we adjourned the hearing of the application to today, 27 May 2016, so that we might be assisted with the argument as to whether or not in those circumstances this Court was functus officio, that this Court has no power to deal with it. For that purpose only, we granted the applicant legal aid.”

Rulings

9.When making these rulings, I focus on (i) what is meant by functus officio; (ii) is the rule of perfection the origin of functus officio and its rationale; and (iii) how functus officio applies to different context. 

My views

10.I note that the prosecution relied on the legal authorities decided before 2010.  I drew the prosecution’s attention to the legal authorities decided after 2010, especially the case of Law Chun Man dated 10^th December 2012. Further, one must not overlook the amendment to the District Court Ordinance, section 80 in or about 2014.  

11.I would venture to suggest that given the more recent authorities and the implication of the said amendment, the ultimate question is “when a judgment is finally recorded” as per the Court of Appeal in Law Chun Man and the Court of Final Appeal in Tin’s Lable case.  As a separate observation, I also seek to propound that the judgment is finally recorded in the context of District Court’s reasons for sentence, which is at the time the written reasons are signed by the Court and delivered to the parties under section 80 of the District Court Ordinance (1^st proposition).  As a separate proposition, the factual matrix of this case falls into the slip rule as per Law Chun Man case (2^nd proposition).     

Discussion on 1^st Proposition

12.What is meant by functus officio?  Is the rule of perfection the origin of functus officio? The Court of Appeal in Law Chun Man had these to say: 

[8.] Once the judgment of the Court is finally recorded then the legal principles of functus officio would, in the normal course, operate to deprive this Court of jurisdiction and to prevent it from re-opening the appeal and amending its judgment. As to when a Court’s judgment is finally recorded and the legal consequences of that happening has become known as the perfection rule. There is no doubt that the order of this Court has been perfected. The judgment has been signed by all the members of the Court; it has been handed down and notice of the determination of the Court of Appeal has been transmitted to the Commissioner for the Correctional Services in accordance with Rule 62 of Criminal Appeal Rules.

[9.] The purpose of the perfection rule is to achieve finality of litigation. In characterising this rule as one of “high importance” the Court of Final Appeal in HKSAR v Tin’s Label Factory Ltd (2008) 11 HKCFAR 637 and at 649I said:

“But it would not be conducive to public confidence in the administration of justice if both the prosecution and the defence can re-open the matter endlessly before the judge. This would not be in the interests of the community. And it would occasion unfairness to the appellant who had been convicted at trial, with the stress, uncertainty and expense involved. There must be an end to the controversy as far as the appellant process … is concerned. The perfection rule is directed to achieving that purpose.”

[10.] Because of the importance of the principles underlying the perfection rule, any power which allows a departure from the rule must itself be exercised on a principled basis. Clearly the power should not be used as an impermissible “back-door” means of re-opening the appeal for the purposes of reviewing or reconsidering the judgment issued, or for altering the basis or rationale of the judgment.

[11.] A power which enables departure from the perfection rule does exist and it has become known as the “slip rule”. This power enables the Court to amend its judgment notwithstanding that its order has been perfected. It is, understandably, a very limited power and the question is whether, in the circumstances of this case, this Court is entitled to have recourse to it for the purpose earlier described. The power is intended to be used to correct errors or omissions in a Court’s judgment to ensure that that judgment reflects and implements the intention of the Court. The existence of this power was recognized by the Court of Final Appeal in HKSAR v Tin’s Label Factory Ltd (2008) 11 HKCFAR 637. At page 651D, the Court said at [35]

13.It is lucid in Law Chun Man case which cited the guiding principles expounded in the CFA case that the perfection rule has these underlying objectives:

(i)  for proper administration of justice;

(ii)  to avoid parties’ application to reopening the matter endlessly;

(iii)  to avoid unfairness to the appellant/defendant, including the stress, uncertainty; and

(iv)  to avoid expense involved.

14.Before applying those underlying objectives into the present case, it is important to set out the factual matrix of this case: (i) before giving the parties the draft reasons for sentence, there has been discussion with the parties on the proper approach on inferring the quantity of DD before arrest; (ii) the parties did not cite Tsang Ka Wing CACC 97/2016 and this Court invited the parties to look into the said more recent case; (iii) there were discussions with parties and finally all agreed to infer from the defendant’s admission that there were about 30 bags of the total quantity of 4.74g as if ketamine being sold before arrest (bearing in mind it was also agreed that 3.16g as if ketamine was found upon arrest).  Hence, the Court had the intention to add 4.74g to 3.16g = 7.9g for calculating the proper starting point.  However, in the draft para 16, the expression does not manifest the above intention and the consensus of the parties, this Court added 33 months (4.74g) to 30 months (3.16g) as if the starting point for 3.16g is 30 months and 4.74g is 33 months respectively, bearing in mind the starting point for a total of 7.9g should be 42 months, not 63 months.

15.Although the conventional approach is to treat the delivery of certificate of sentence as the cut off time regarding the issue functus officio, one must not overlook the recent amendment of section 80 of the District Court Ordinance in or about 2014:

Verdict

(1)  The verdict and any sentence shall be delivered orally and be recorded in writing at the time of that delivery.

(2)  The reasons for the verdict must be delivered—

(a)  together with the verdict; and

(b)  either orally or in writing. (Replaced 20 of 2014 s. 6)

(3)  The reasons for any sentence must be delivered—

(a)  together with the sentence; and

(b)  orally. (Added 20 of 2014 s. 6)

(4)  Reasons delivered orally under subsection (2) or (3) must be reduced to writing within 21 days after the hearing or the trial. (Added 20 of 2014 s. 6)

(5)  The reasons reduced to writing must be signed by the judge. (Added 20 of 2014 s. 6)

(6)  For reasons delivered in writing under subsection (2) or reasons reduced to writing under subsection (4), the Court must—

(a) deliver a copy of the reasons to each of the parties;

(b)  lodge a copy of the reasons in the High Court Library;

(c)  make a copy of the reasons available for public inspection in the Registry of the Court; and

(d)  make a copy of the reasons available to the public through the Internet. (Added 20 of 2014 s. 6)

 (Replaced 1 of 1993 s. 5)

16.It seems that unlike reasons for verdict, reasons for sentence cannot be handed down.  It must be pronounced orally and be reduced into writing within 21 days.  It follows that it may be said that before oral reasons for sentence are reduced into writing and before the judge signed on the written reasons for sentence, mistake of the kind made in this case can be corrected and it is yet to be functus officio.  

Discussion on 2^nd Proposition

17.Even if I were wrong on the 1^st proposition, I am of the views that 2^nd proposition is correct, i.e.  this case falls within the slip rule.

18.I reiterate the factual matrix above, in particular, at the hearing, this Court had the intention to add 4.74g to 3.16g = 7.9g for calculating the proper starting point for the 1^st charge.  However, in the draft para 16, the expression does not manifest the above intention and consensus of the parties, this Court added 33 months (4.74g) to 30 months (3.16g) as if they were separate charges, hence the separate starting point for 3.16g is 30 months and 4.74g is 33 months respectively.  In fact, there was only one charge of conspiracy to traffic in DD, bearing in mind the starting point for one single charge of 7.9g as if ketamine should be 42 months, not 63 months.

19.In short, applying the principles in Law Chun Man and the CFA case in Tin’s Label.  My views are that allowing amendment to the certificate of sentence accord with these underlying objectives for perfection rule: (i) it is for proper administration of justice; (ii) the present situation would not open the floodgate of reopening the matter endlessly; (iii) to accord with fairness to the defendant as the present mistake, if corrected, was in his favour and it seems that fiat counsel also agreed to the formula of calculation; (iv) there is certainty and further cost and expenses would be avoided.  

20.Last but not the least, I must stress that a power which enables departure from the perfection rule does exist and it has become known as the “slip rule”.  This power enables the Court to amend its judgment notwithstanding that its order has been perfected.  It is, understandably, a very limited power and the question is whether, in the circumstances of this case, this Court is entitled to have recourse to it for the purpose earlier described.  The power is intended to be used to correct errors or omissions in a Court’s judgment to ensure that that judgment reflects and implements the intention of the Court.  My view is that the present amendment not only reflects the Court’s intention, it also reflects the parties’ consensus.  This is exactly the scenario mentioned in Tin’s Label. 

Conclusion

21.By reason of the matters aforesaid, I decide to amend the certificate of sentence which reflects the sentence of 28 months, not 42 months for the 1^st charge.