HKSAR v. Kwan Wai Hon

CACC 91/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 91 OF 2005

(ON APPEAL FROM DCCC 1258 of 2004)

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BETWEEN

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Before: Hon Stuart-Moore VP

Date of Hearing: 17 June 2005

Date of Judgment: 17 June 2005

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.The applicant was 37 at the time he pleaded guilty on 8 January 2005 in the District Court before Deputy Judge Thomas to trafficking in a mixture containing 10.62 grammes of heroin hydrochloride.  With 26 previous convictions to his name, mostly drug-related, he does not complain about the starting point of 5 years’ imprisonment adopted by the judge or the eventual sentence of 3 years and 4 months’ imprisonment which reflected his plea.  The difficulty which has arisen stems from what was meant by ‘commence’ in the order made by the judge that:

“The sentence shall commence 6 months after the start of your existing sentences.”

At the time he was sentenced, the applicant was serving a total of 16 months’ imprisonment on 2 charges of possessing a dangerous drug imposed at Fanling Magistrates’ Court on 18 October 2004.

2.This matter first came before me on 28 April 2005 as a single-judge application for leave to appeal against sentence out of time.  The essence of the applicant’s complaint was that he had suffered an element of double punishment arising from the rather unusual nature of the judge’s order.  Plainly, the judge intended that part of the sentence he imposed was to be served consecutively to the Fanling sentence in which case one would normally have expected to see this expressed as an order that 6 months, if that is what the judge intended, should run consecutively to the sentence the applicant was already serving.

3.Mr Robert K Y Lee’s written submission on behalf of the respondent for the hearing on 28 April 2005 indicated that he had made certain enquires which revealed that the Correctional Services Department (CSD) “did not regard the sentence (as) vague and have not sought clarification with the court”.  In these circumstances, not unnaturally, Mr Lee was at a loss to understand the applicant’s complaint, particularly in the light of section 68 of the Criminal Procedure Ordinance, Cap. 221, which provides:

“Where the court sentences any person to undergo a term of imprisonment for an offence, and such person is already undergoing, or is at the same time sentenced to undergo, imprisonment for another offence, it shall be lawful for the court to direct that such imprisonment shall commence at any time during or at the expiration of the term of imprisonment which such person is then undergoing or has been so previously sentenced to undergo, as aforesaid.”

4.By the time of the hearing on 28 April 2005, Mr Lee was able to update his written submission by handing to me a number of items of correspondence showing that there had in fact been communication between the CSD and the District Court Registrar concerning the calculation of the applicant’s sentence.  This left open a number of possibilities which were not capable of being resolved on that occasion.  I then stood the matter over to another date so that I could be provided with a definitive answer to the applicant’s ground of appeal.

5.I have now been served with a statement by a Principal Officer of the CSD, Peter Chan Ba-tak, who was previously in correspondence with the Registrar of the District Court.  In his memorandum to the Registrar, dated 10 January 2005, he pointed out that as the applicant had spent a period of 41 days in custody, by virtue of section 67A (1A) of the Criminal Procedure Ordinance this counted towards the applicant’s 16-month sentence imposed at Fanling.  This, in turn, had the result that the applicant had completed the equivalent of 6 months of his sentence on 6 January 2005, some two days before the judge in the present case made the order that sentence for this case should commence “6 months after the start of (the applicant’s) existing sentences”.  Mr Chan, in other words, had very probably observed, though he was too polite to mention it, that to give literal effect to the judge’s order involved an element of impermissible backdating of the sentence (although the balance of the applicant’s sentence imposed at Fanling still had about 10 months to run).  Very responsibly, he asked for clarification.

6.A response to Mr Chan’s letter was sent by the judge’s clerk, Miss K H Chan, on 14 January 2005 which stated that the judge had directed that the applicant’s sentence of 3 years and 4 months was:

“To start after 6 months after the start of the cumulative sentences (on the Fanling charges).” (Emphasis added)

7.This was not, with respect, the easiest instruction to understand.  In a further memorandum to the Registrar, for the attention of the judge’s clerk, dated 1 February 2005, Mr Chan responded by thanking the court for its advice and he continued by saying:

“	2.	With reference to the relevant Committal Warrants (Form 66), the start of the cumulative sentences in FLC 2423/04 and 2644/04 was on 18.10.2004.  Being such, the date after six months of these cumulative sentences should be on 18.4.2005.
	3.	As elaborated by His Honour, it is therefore comprehended that the sentence in DCCC 1258/04 is to be started on 18.4.2005.
	4.	Grateful if you could confirm the above to facilitate our calculation of the sentence for Prisoner KWAN.”

8.On the following day, the judge’s clerk sent a memorandum which reads:

“	Your memo dated 1 February 2005 of the above reference refers.
	2.	Please note that your memo has been placed before Deputy District Judge D I Thomas for direction. I now append hereunder the remarks made by His Honour on this day:
		“	Confirmed that para. 3 in your memo (dated 1 February 2005) is correct.”
	3.	Thank you for your attention.”

9.The impact of this adjustment, which I am by no means satisfied the judge could have appreciated at the time it was made, is that the applicant was left with a release date which is considerably later than it would otherwise have been.  In short, if the District Court sentence of 3 years and 4 months had simply been ordered to run consecutively to the extent of 6 months to the sentences imposed at Fanling, the applicant’s earliest release date, as Mr Chan has indicated, would have been 29 March 2007.  This calculation takes into account the time spent in custody prior to being sentenced on 18 October 2004 at Fanling Magistrates’ Court. 

10.This is not, however, the position as it presently stands.  Following the judge’s direction that the sentence of 3 years and 4 months was to start on 18 April 2005, which is exactly 6 months after the magistrate at Fanling imposed 16 months’ imprisonment, this has now left the applicant with an earliest date of discharge on 7 July 2007.  In saying this, I have had the benefit of a detailed calculation from Mr Chan to whom I am indebted for his careful research. 

11.Putting the matter more starkly, if the first 6 months of the applicant’s sentence imposed at Fanling Magistrates’ Court had not already elapsed at the time the judge passed sentence in the District Court, the enquiry, sensibly and responsibly initiated by Mr Chan, would not need to have been made.  The CSD would then have proceeded on the basis that the District Court sentence was to run consecutively to the Fanling term of imprisonment to the extent of only 6 months, the remainder being served concurrently.  This would have left the applicant with 29 March 2007 as his earliest date of release.

12.This is not the first time that the passing of a sentence which has departed from the usual order of making the sentence consecutive or concurrent in whole or in part to the sentence already being served has led to difficulty.  I would, with respect, for the reason which has emerged in this application, seek to discourage sentencers from going outside the terms of the normal order. (See also: Secretary for Justice v Chen Runliang, CAAR 4/2004)

13.As the effect of the judge’s present order is adverse to the applicant’s interests, which would have been otherwise if the judge had merely made the usual order that 6 months of the sentence he imposed was to run consecutively to the sentences already being served, I am in no doubt that the applicant’s ground of appeal on this point of principle is arguable and that leave should be given to appeal.

14.Accordingly, leave to appeal against sentence is granted.

15.Mr Lee has very properly indicated, now that he has taken on board the full significance of the point which has been raised, that it may well be that the respondent will not oppose the appeal.  If Mr Lee confirms this view in writing, the matter should be listed as an appeal against sentence before the end of the month so that the appeal can be formally allowed.

Mr Robert K Y Lee, SGC, for the Department of Justice, for the Respondent.

The Applicant, in person.