HKSAR v. Lam Pak Lok

CACC000455/1997

HEADNOTE

[ (1) Whether a defendant should be given credit for time spent in custody in China awaiting his return to Hong Kong is a matter within the discretion of the sentencing judge. The fact that the defendant had fled to China in the first place is a factor which the judge is entitled to take into account, but it does not mean that the defendant should automatically forfeit the time spent in custody in China.

(2) (By a majority): Whether the credit for time spent in custody in China should be applied before or after any discount to reflect the defendant's mitigation is a matter within the discretion of the sentencing judge.]

IN THE COURT OF APPEAL

1997, No. 455
(Criminal)

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Coram: Mayo, J.A., Keith, J. and Yeung, J. in Court

Date of hearing: 24 October 1997

Date of delivery of judgment: 24 October 1997

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J U D G M E N T

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Keith, J. (giving the judgment of the Court):

Introduction

1. On 21st July 1997, the Applicant pleaded guilty in the Court of First Instance to two charges: a charge of robbery and a charge of wounding. He was sentenced to 4 years' imprisonment on the charge of robbery, and 2 years' imprisonment on the charge of wounding, those sentences to be served consecutively to each other, amounting to 6 years' imprisonment in all. He now applies for leave to appeal against the sentences.

The facts

2. The Applicant's victim was a 16 year old schoolboy. The Applicant knew his family. On a day in November 1991, the Applicant accompanied the boy home from school. Having got the family's domestic helper out of the flat by a subterfuge, the Applicant grabbed the boy round the neck, threatened him with a 14( long knife and demanded the boy's money. The boy gave the Applicant $100.00. The Applicant proceeded to ransack the flat and to steal a watch and a number of items of jewellery.

3. The Applicant then tied the boy up. He tied his hands, and then put a tie round the boy's neck. He tied it so tightly that the boy lost consciousness. Later, when the boy was examined in hospital, he was found to have haemorrhaging in both his eyes and swelling over his face and neck. These injuries indicate how tightly the tie must have been tied. Indeed, when the boy regained consciousness in the flat, he had found his neck bleeding. In addition, the Applicant had cut the boy's face and neck with a knife. Those wounds varied in length from 1/2 cm. to 4 cms. long.

4. At some stage, the Applicant went to China. The judge was not told when. He was arrested there in March 1995 and was detained in jail custody until September 1996. That was when he was handed over to the Hong Kong police. He was therefore in custody in China for 18 months.

The judge's approach

5. In his comprehensive sentencing remarks, the judge carefully identified the process of reasoning by which he concluded that the Applicant should serve terms of imprisonment totalling 6 years. Since the Applicant was being sentenced for more than one offence, the judge correctly decided to apply the totality principle. He took 10 years' imprisonment as his starting point. He discounted that by one year to reflect the time which the Applicant had spent in custody in China awaiting his return to Hong Kong. That brought the term down to 9 years' imprisonment. He then discounted that term by one-third to reflect the Applicant's pleas of guilty and his co-operation with the police (by which the judge was referring to the fact that the Applicant had admitted his guilt when interviewed by the police on his return from China). That brought the term down to 6 years' imprisonment.

The grounds of appeal

6. The Applicant has criticised the judge's approach on three grounds. First, he contends that he should have been given credit for the whole of the 18 months during which he was in custody in China. Secondly, he contends that the discount of one year for the time spent in custody in China should have been applied after the one-third discount and not before. Thirdly, he contends that the credit he was given for the time spent in custody in China should additionally have reflected the fact that had that time been spent in custody in Hong Kong, it would have attracted the potentiality for remission under the Prison Rules. For his part, Mr. Darryl Saw S. C. for the Respondent contends that the judge erred in giving the Applicant any credit for the time he spent in custody in China. Mr. Saw recognised that the judge had a discretion in the matter: see Law Yiu Wo (CA 107/94). But Mr. Saw argued that there was no room for exercising that discretion in the Applicant's favour in view of the fact that the Applicant was in detention in China only because he had fled from Hong Kong: see Wong Hoi (CA 354/85).

7. We do no think that the judge erred in exercising his discretion to give the Applicant credit for his time in custody in China. The fact that he may have fled there from Hong Kong was a factor which the judge had to take into account in the balancing exercise. But it was for the judge to give such weight to that factor as he thought appropriate. We cannot say that the mere fact that a defendant is in custody in a foreign country because he flees there to avoid the consequences of his crimes in Hong Kong means that he must automatically forfeit a claim to be credited with time spent in custody abroad.

8. Nor do we think that the judge erred in not giving the Applicant credit for the whole of the 18 months during which he was in custody in China. As the judge said:

"I must also take into account that he was arrested initially for theft and it would have taken some time for the investigations to be concluded in that regard."

Nor do we think that the judge erred in failing to take account of the potentiality for remission under the Prison Rules had the time spent in custody in China been spent in Hong Kong. The fact of the matter is that having fled from Hong Kong, the Applicant should not be entitled to such benefits as he could have got if he had served his sentence in Hong Kong.

9. However, the issue as to whether the discount of one year for the time spent in custody in China should have been applied before or after the discount for the Applicant's mitigation has divided us. One of us believes that the judge erred in crediting the Applicant with the one year before applying the discount for the Applicant's mitigation. That is because where credit for time spent in detention abroad is given, it is intended to reduce the time which a defendant would otherwise have to spend in prison in Hong Kong. The time which a defendant would otherwise have to spend in prison in Hong Kong is the sentence which would have been imposed after the mitigating factors had been taken into account. However, the majority of us take the view that the question as to when the discount was to be applied was within the discretion of the judge. The majority of us do not think that the exercise of the judge's discretion should be interfered with simply because the discretion could have been exercised in a different manner. The majority of us are also mindful of the fact that, in the final analysis, the total sentence imposed by the judge was not excessive, having regard to the gravity of the offences which the Applicant committed.

Conclusion

10. For these reasons, this application for leave to appeal against sentence must be refused.

Representation:

Lam Pak Lok in person.

Mr. Darryl Saw S. C. and Mr. Simon Tam, of the Department of Justice, for the Respondent.