Attorney General v. Wong Man Kei

CAAR000004/1992

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Coram: Hon. Yang, CJ, Power & Macdougall, JJA

Date of Hearing: 17 July 1992

Date of Judgment: 17 July 1992

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J U D G M E N T

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Hon. Yang, CJ:

1. The respondent was convicted upon his own plea of handling stolen property, namely, certain electrical equipment to the value of $51,864.

2. The offence was committed on the 19th June 1990. The respondent was arrested and was allowed bail. The matter was listed for trial on the 11th February 1991. He then jumped bail.

He travelled to Sinkiang by train and entered Pakistan as an illegal immigrant and faced "untold hardship". He was then arrested and jailed for immigration offences in that country. Eventually the British Ambassador in Pakistan became aware of the respondent's plight, and the respondent was permitted to telephone his sister in China. She had to sell her house to arrange for the remittance of US$2,000 in order to purchase his air ticket for his flight back to Hong Kong. Upon arrival in Hong Kong on the 20th November 1991, he was arrested. He was detained in custody until his appearance in the District Court on the 13th February 1992.  

3. Noting that the respondent had a number of previous convictions for minor offences, including some for theft, but being of the opinion that he had learned a "bitter lesson", the trial. judge on the 26th February 1992 sentenced him to a term of two years' imprisonment having taken into account that he had spent some nine months in imprisonment in Pakistan. The judge ordered that the term of two years "will run from 20th August 1991", i.e. three months prior to his arrest on his return to Hong Kong.

4. After that sentence was passed, the judge noted: "Unfortunately I made a mistake in sentencing". Then she went on to say: "There it is. I can't review myself".

5. The Attorney General in this application for review of sentence under s. 81A of the Criminal Procedure Ordinance, Cap. 221 makes the point that the sentence was wrong in principle and/or not authorised in law: vide Gilbert v R [1975] Cr. App. R 220, Fan Ah-vuk v R [1961].HKLR 665, Ip Chor-hung v R Cr. App. 201/74, Law Tung-shins v R [1979] HKLR 477. Clearly as the judge fully realised, albeit after sentence was passed, the backdating of a sentence is not permitted in law.

6. It is argued on behalf of the Attorney General the two years' imprisonment is a proper sentence on the facts, given the respondent's plea and criminal record. It is further argued that, as a matter of principle, no credit should be given for his sufferings as those were self-inflicted. But Mr. Bruce this morning also made the point that if this Court is of the view that it should, consistent with the law, keep faith with the approach of the learned trial judge, then some discount could be given for the sufferings which the respondent had undergone.

7. We are of the view that, while the trial judge was not required so to do, it was within her discretion to take into consideration the kind of predicament that the respondent in this case had suffered. And in giving effect to what the trial judge had intended to do, we would allow the review, quash the sentence and substitute therefor a sentence of 21 months starting from the date of the original sentence.

Representation:

Mr. A. Bruce for Attorney General/applicant

Mr. Andrew Macrae (DLA) for respondent