HKSAR v. Chan Nok Ching

CACC 357/2025 [2026] HKCA 1853

On appeal from [2025] HKDC 1415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 357 OF 2025

(ON APPEAL FROM DCCC NO 822 OF 2023 and DCCC NO 641 OF 2024)

(Consolidated)

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REASONS FOR JUDGMENT

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1.A detailed background to this case was set out in my judgment dated 17 September 2026[1], granting the 1^st, 2^nd and 3^rd applicants (D3, D2 and D1 respectively at trial) leave to appeal against sentence and bail pending appeal (with conditions), while refusing the 4^th applicant (D6 at trial) leave to appeal against sentence.  This resumed hearing concerned only the 5^th applicant (D7 at trial).  On 17 September 2026, I adjourned the hearing of D7’s application for leave to appeal against sentence out of time to enable the respondent to obtain further instructions from the Correctional Services Department (CSD) regarding the status of the 60 days that D7 had previously served.

2.On 27 August 2025, D7 pleaded guilty to one count of unlawful assembly, contrary to s.18(1) and (3) of the Public Order Ordinance, Cap 245, before District Judge E Yip (the judge) and was sentenced to a term of 2 years and 4 months’ imprisonment.  The judge also made the following order:

“I understand that D7 had been arrested for the present matter and detained by the court for 60 days under another court case number.  That case was then withdrawn, so that D7 was released, before the present case.  His counsel asked me to endorse such 60 days as part of the present sentence already served.  The prosecution has no objection.  I hereby make the order.”[2]

3.The 60 days related to the period of detention from 6 August 2023 to 4 October 2023 in respect of TMCC 1778/2023, in which the charge was withdrawn by the prosecution on 4 October 2023.  D7 was released on 4 October 2023 in respect of TMCC 1778/2023 and was then placed on remand for the present case on 30 July 2025, and was subsequently sentenced on 27 August 2025.

4.D7’s sole complaint was that the 60 days he previously spent in custody had not been properly deducted pursuant to the judge’s order, resulting in his serving a longer term than he should have. 

5.Mr Ivan Cheung, with Ms Stephanie Kong, for the respondent, filed further submissions dated 6 October 2026 following enquiries with the CSD.  He attached a memo from the CSD dated 29 September 2026, in which it was stated that, according to the CSD’s calculation, the 60 days were subtracted from the judge’s sentence of 2 years and 4 months, resulting in an actual sentence of 2 years and 2 months and 1 day (or 792 days).  From this figure, the CSD further deducted D7’s period of present remand of 28 days (from 30 July 2025 to 27 August 2025) and granted him a one-third remission (or 264 days) for his industry and good conduct[3]. That resulted in his earliest date of discharge of 10 January 2027.  

6.Mr Cheung submitted that, under the CSD’s calculation, only 40 days of the 60-day period were taken into account in terms of the actual sentence to be served by D7.  The CSD explained that this was in accordance with the Certificate of Sentence dated 27 August 2025, which stated that the applicant was sentenced to “Imprisonment for 2 years and 4 months.  It is ordered that 60 days be further deducted from the final sentence.”

7.However, Mr Cheung submitted that, contrary to the CSD’s position, the respondent’s position was that the full 60 days should be treated as time actually served by D7 and counted directly towards the time to be served in terms of the sentence imposed by the judge.  He did not object to D7’s application for leave to appeal against sentence out of time so as to enable the full Court to examine the proper construction of the judge’s order and its appropriate effect.

8.The sole issue before me was the correct interpretation and effect of the judge’s order.  I was satisfied that there was a compelling argument in support D7’s contention that he should receive the full benefit of the 60 days and that this was intended by the judge’s order.  Moreover, as a matter of fairness, 60 days should have been subtracted from the actual days served to fulfil his sentence.  The issue essentially came down to this.  The applicant served 60 days in prison for the offence in respect of which he was sentenced to 2 years and 4 months’ imprisonment.  The 60 days were actual time served and therefore the judge by his order was seeking to have those days served set off against the days he would be required to serve under the sentence passed on him.  This is why the applicant felt aggrieved that he has not received the benefit of the full 60 days that he had served in relation to this offence.

9.Accordingly, I granted the applicant leave to appeal against his sentence and an appeal aid certificate for him to be legally represented on his appeal.  I noted that it was likely that his appeal would be heard after the date on which he should be released if he were successful in his appeal, which on current calculations would be 22 December 2026.  It was noted by CSD that the applicant had forfeited 2 days from his remission for breach of prison discipline.  In light of the foregoing, it would be appropriate for the assigned legal team to make an application for bail pending appeal before me on the date he would be released if the 60 days were to be given full effect.

10.Given the position taken by the CSD, it would be appropriate, if it wishes to do so, to file a submission on the matter and to be legally represented at the hearing of the appeal.

Mr Ivan Cheung, ADPP, and Ms Stephanie Kong, PP, of Department of Justice, for the respondent

The 5^th applicant appeared in person

[1]  HKSAR v Wong Kam Chung and others [2026] HKCA 1713.

[2]  Appeal Bundle (AB), 21, at [17]. 

[3]  The CSD stated that 2 days had been forfeited from D7’s remission of sentence as a result of his violation of prison discipline.