Ip Chor Hung v. The Queen

CACC000201/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 201 OF 1974

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 30th April, 1974.

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JUDGMENT

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Huggins, J. :

1. This is an application for leave to appeal against a sentence of four years' imprisonment for assault with intent to rob. The learned trial judge directed that the sentence should take effect from the date of the Appellant's arrest, i.e. 25th February 1974.

2. The circumstances of the offence were that at forty minutes past midnight the Appellant and another man, who were both armed with knives, approached a man in a corridor of a block of flats. They threatened the victim and demanded money. The victim shouted, whereupon the two attackers fled but not before the Appellant had struck the victim on the head and injured him with the knife. The Appellant had previously been convicted of six offences of robbery and a number of other offences involving theft, in addition to offences under the Dangerous Drugs Ordinance.

3. In our view a sentence of four years' imprisonment was neither wrong in principle nor manifestly excessive. Counsel for the Crown did, however, draw our attention to the difficulties experienced by the Commissioner of Prisons when a Court ordered that a sentence should run from a particular date, and he questioned whether it was appropriate for the trial judge in the present case to direct that the sentence should run from the date of the Appellant's arrest. We are not on this occasion disposed to interfere and to deprive the Appellant of the benefit which that direction gave him, a benefit which in any event is minimal, but we would draw attention to what this Court said in The Attorney General v. LI Yu-kai Application for Review No. 17 of 1973, which has unfortunately not been reported. Without deciding whether it would ever be right to back date a sentence beyond the date of conviction under the power conferred by s.67A(1) of the Criminal Procedure Ordinance, we contented ourselves with saying

"that the power to back date a sentence should be used with great discretion and that a reason for its exercise should always be given".

We pointed out that under s.67A(2) the Commissioner of Prisons was required to treat the length of any term of imprisonment as reduced by specified periods - which must clearly be construed as meaning by periods equal to the lengths of those specified periods. It followed that there was a possibility that allowance for those periods might be made twice, as has happened in this case. The present Appellant was arrested on 25th February 1974, the case was transferred to the District Court on 12th March 1974, when he was remanded in custody under s.90 of the Magistrates Ordinance, and he was convicted and sentenced on 14th March 1974. The effect of s.67A of the Criminal Procedure Ordinance was that the Commissioner had to treat the sentence of four years' imprisonment as reduced by the two days from 12th March to 14th March. That sentence of four years less two days would normally have run from 14th March. The direction of the judge did not have the result which was no doubt intended, i.e. that the Appellant should serve a term of four years' imprisonment from 25th February, thus giving him the benefit of the period from arrest until transfer of the case to the District Court in addition to the period from transfer until conviction and sentence: the effect of the direction was that he would serve four years less two days from 25th February, the period from transfer until conviction and sentence being credited twice. There could be no justification for that double allowance and in another case the effect might not be minimal. The direction also unnecessarily complicated the computation of the date when the Appellant was due for release. In The Attorney General v. LI Yu-kai we further observed:

"... it can be said that it is convenient to be able to back date a sentence so as to allow for a period during which the defendant was in custody because conviction on a plea of guilty was unreasonably delayed, for example because he was not arraigned pending police investigations into other possible offences".

This was not such a case and in our view the sentence ought to have been imposed with effect from the date of conviction, as contemplated by s.67A(1).

4. In the event we dismiss the application and make no further order.

30th April, 1974.

Representation: