Fu Man Kit v. Superintendent of Tai Lam Correctional Institution

FAMV No. 300 of 2022

[2023] HKCFA 33

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 300 OF 2022 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 459 OF 2019)

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ:

1.At the hearing, this leave application was dismissed for the reasons now provided.

2.The applicant “Fu” was charged with trafficking in dangerous drugs and was convicted on 11 July 2018 on his plea of guilty to the lesser offence of possession. He was sentenced to imprisonment for two years, ie, 731 days. By then he had been held in custody on remand for 604 days.

3.By virtue of section 67A of the Criminal Procedure Ordinance,[1] his 731 day sentence was treated as reduced by that 604 day period, leaving a balance of 127 days. Fu sought to argue that under Rule 69(1) of the Prison Rules,[2] he was entitled to remission of one-third of the entire term of 731 days which, taking into account 14 days deducted for misconduct, he calculated as coming to 229 days’ remission. Accordingly, so he argued, he was entitled to immediate release upon pronouncement of the sentence since that 229-day period of potential remission exceeded the 127 days’ imprisonment remaining after deducting the time spent in custody on remand.

4.That argument succeeded before Campbell-Moffat J[3] but failed in the Court of Appeal.[4] Barma JA pointed out that Rule 69(1), which gave the Commissioner a discretion to grant a maximum of one-third remission, was subject to a proviso that that rule “shall not permit the reduction of the actual term to less than 31 days”. Thus, the Court of Appeal held that such remission as might be granted to Fu could not result in reducing the balance of 127 days to an “actual term” of less than 31 days, the words “actual term” meaning “remaining term”. In our view, Barma JA was plainly correct.

5.Fu had been kept in custody after sentence was initially pronounced. He was then released by Campbell-Moffat J on his habeas corpus application and was on bail pending the Superintendent’s appeal to the Court of Appeal. Applying the Court of Appeal’s construction of the rule, there remained 11 days’ imprisonment to be served by Fu after the judgment on appeal was handed down.

6.Initially, Fu sought leave to appeal to the Court of Final Appeal on two questions, the first of which involved challenging the Court of Appeal’s construction of Rule 69(1). That has however been abandoned. Leave to appeal was then sought only on Fu’s Question 2 asking whether Rule 69(1), so construed is “arbitrary and/or unconstitutional when a convicted person has to serve a further term of 31 days after being sentenced even when the one-third discount of remission would have allowed his immediate release?” In our view, there is no basis for granting leave to appeal on this application.

7.First, the appeal would, for all practical purposes, be academic. As it turns out, Fu was again in custody after being arrested for a different offence when the Court of Appeal judgment was published. The balance of 11 days was in fact duly served by him in conjunction with his detention in custody. He had therefore served his full term of imprisonment and no practical benefit would accrue to him even if he were to succeed on his Question 2.

8.Secondly, there is a strong Flywin objection[5] to the grant of leave. Question 2 was not raised or argued below. If it had been raised, the Superintendent would have wished to file evidence on the role played by Rule 69(1) in prison management. Moreover, further applying Flywin, there is no exceptional reason for allowing the alleged constitutional point to proceed to the Court without prior consideration by the intermediate appellate court.

9.The foregoing are procedural reasons against granting leave. Substantively, the proposed appeal on Question 2 is not reasonably arguable. Mr Phil Chau SC, appearing on Fu’s behalf, explained that the aim was to raise questions of rationality and proportionality, seeking to argue that Rule 69(1) operates unfairly or arbitrarily. He submitted that where different defendants are given the same sentence, the length of time spent on remand in pre-trial custody may affect the operation of the proviso to Rule 69(1) and thus affect the extent to which the remaining sentence might be reduced by remission. The longer that period of remand, the more likely it might be that the prisoner will run up against the 31 day minimum and so not be granted the full potential period of remission.

10.It was suggested that the constitutional right which has allegedly been infringed is Article 5 of the Bill of Rights which guarantees the right to liberty and security of the person and protects against arbitrary arrest or detention. However, as Article 5(1) makes clear, such arbitrariness does not arise where a person is deprived of his liberty “on such grounds and in accordance with such procedure as are established by law”. Mr Chau disclaimed any attempt to argue that Rule 69(1) as construed by the Court of Appeal was itself unconstitutional. He sought only to argue that its operation in conjunction with CPO section 67A gave rise to arbitrariness.

11.That proposition is not reasonably arguable. The 31 day minimum which restricts the scope of remission is duly established by law and not under challenge. Its operation is therefore not arbitrary for the purposes of Article 5 so that no constitutional infringement is engaged. There may be many different reasons why the period of remand is longer or shorter in particular cases. There may accordingly be many different reasons why, applying Rule 69(1), some prisoners may not be able to have their remaining terms of imprisonment reduced beyond the 31 day minimum. But this is a function of the length of pre-trial custody in the light of the eventual sentence rather than any unconstitutionality in the remission regime or its operation.

12.Even if a constitutional challenge were open to the applicant, since this point was not previously raised, there is no evidence as to the aim and functioning of that minimum requirement and so no basis for judging its legitimacy, rationality or proportionality. The Superintendent submits that various considerations exist which might be illuminated by such evidence: such as the need for a period to observe the prisoner’s behaviour; promoting rehabilitation and so on. This reflects the importance of the evidential aspects of the Flywin principle. As the Superintendent has been deprived of the opportunity of filing such evidence, it would be unfair for leave to be granted on Question 2. Furthermore, in the absence of evidence, Fu is himself unable to mount a coherent argument postulating unreasonableness, arbitrariness or unconstitutionality in relation to the operation of Rule 69(1).

13.For the foregoing reasons, we dismissed this application.

Mr Phil Chau SC and Mr Tien Kei-rui, instructed by Gallant, assigned by the Director of Legal Aid, for the Applicant

Mr Mike Lui SC, instructed by the Department of Justice, for the Respondent