HKSAR v. Fan Cho Man (D5)

CACC 302/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 302OF 2008

(ON APPEAL FROM DCCC NO. 980 OF 2006)

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BETWEEN

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Before:  Hon Stock VP, Hartmann JA and Wright J in Court

Date of Hearing and Judgment:  7 May 2010

Date of Handing Down Reasons for Judgment:  19 May 2010

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REASONS FOR JUDGMENT

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Hon Stock VP (giving the reasons of the Court):

1.On 31 March 2010 we handed down judgment in this appeal. In the result we allowed the appeal of D5 (Ms Fan) against conviction in respect of Charges 1 and 5 but dismissed her appeal against conviction in relation to Charge 2.

2.On 7 May 2010, pursuant to the provisions of s. 83B of the Criminal Procedure Ordinance, Cap. 221, we set aside the sentence which had been imposed on Fan in the court below in relation to Charge 2 and substituted therefore such sentence as enabled her immediate release. We said that we would give reasons later. These are our reasons.

3.Fan had been sentenced by the court below to 30 months’ imprisonment in respect of Charges 1 and 2, ordered to run concurrently, and 15 months in respect of Charge 5 of which 3 months were ordered to run consecutively, the remainder to run concurrently; a total of 33 months.

4.D6, Lai, had been sentenced to 30 months’ imprisonment in respect of each of Charges 1 and 2, ordered to run concurrently, a total of 30 months’ imprisonment. His appeals against conviction in relation to Charges 1 and 2 were dismissed.

5.The result of the appeals as far as concerned Lai and Fan were that Lai was left with a sentence of 30 months’ imprisonment, and that Fan was left with one of 30 months’ imprisonment, though Fan remained convicted of the second conspiracy only, whilst Lai remained convicted of the first and the second conspiracies.

6.By the time of the appeal hearing in September 2009, there were before us no applications for leave to appeal against sentence by either Lai or Fan. Lai had never sought leave to appeal against sentence and Fan had abandoned her application for leave to appeal against sentence. Those decisions were wholly justified, given that, on any view, the sentences in respect of Charges 1 and 2 were in themselves very light and in totality, in our judgment, manifestly inadequate. It is particularly difficult to understand why they were not ordered to run consecutively, at least in part.

7.At the date of handing down our judgment on 31 March 2010, a most unusual combination of circumstances – to which we shall shortly refer – left Fan in a position as regards sentence which seemed to us, as a matter of justice, to require consideration pursuant to our powers under s. 83B of the Criminal Procedure Ordinance Cap. 221 which provides as follows :

“(1) This section applies where on an appeal against conviction on an indictment containing 2 or more counts, the Court of Appeal allows the appeal in respect of part of the indictment.

(2) The Court of Appeal may in respect of any count on which the appellant remains convicted pass such sentence, in substitution for any sentence passed thereon at the trial, as it thinks proper and is authorized by law for the offence of which he remains convicted on that count.”

8.On 8 February 2010 we had heard a bail application made on behalf of Lai and Fan. The application was for bail pending determination of the appeal. The circumstances were unique in that the bail application was made at the invitation of the Court; an invitation extended because two defendants, Lai and Fan, still in custody – so we thought: we were not then aware that Lai had been released albeit remaining under strict supervision – had but a few months’ imprisonment still to serve; the outcome of these unusually complicated appeals, which had been heard in September 2009, had not by that date been determined; and we considered this exceptional step to be warranted in all circumstances. We granted bail to both Lai and Fan pending determination of the appeals.

9.At the date of the appeals, Lai and Fan found themselves, in relation to custody, in different positions. Lai was in practical terms in a more favourable position. That was because his sentence was 30 months in all whereas Fan’s was 33 months in all, by reason of which difference Lai was eligible to be released under supervision earlier than Fan. Section 7 of the Prisoners (Release under Supervision) Ordinance, Cap. 325 provides, insofar as is relevant for present purposes, that a prisoner who is serving a sentence of imprisonment of two years or more and who is within six months of the expiry of his imprisonment (taking into account remission under the Prison Rules, Cap. 234), may be released from that imprisonment subject to supervision and may be required whilst under such supervision to reside in a hostel. That is what happened to Lai whose sentence, after remission, was due to expire in May 2010.

10.Lai was released under supervision on 5 November 2009. No such benefit was accorded to Ms Fan in November 2009 because, we assume, by reason of the sentences imposed upon her in relation to three charges of which she had been convicted, she had not by then served half the sentence and was not within six months of her date of release. So she remained in prison custody until her release on bail in February, whereas Lai, by February, had been out of prison (though under supervision) since November.

11.The result of the appeal was that Lai remained convicted in relation to Charges 1 and 2. Because there was in his case no appeal in relation to sentence, it was not open to the court to increase it to the level which we thought appropriate. The practical effect of our judgment in March 2010 was that Lai was obliged to complete his sentence, but would do so out of prison custody although under supervision.

12.We have explained why by the time of the bail application, Lai had been released under supervision and Fan had not. In practical terms it boiled down to the fact that the conviction on Charge 5 had resulted in a difference to their total sentences. However as a result of our judgment in March 2010, the conviction in respect of Charge 5 was quashed. So too, in her case, was the conviction in relation to Charge 1. It followed that the historical reason for the difference in their custodial position no longer obtained. Moreover, as a result of the appeal, Lai stood convicted of two conspiracies but Fan of one, yet even so, in practical custodial terms, Lai was now in a more favourable position than Fan: (1) were Fan’s sentence in relation to Charge 2 to stand, she would have to return to prison custody: whether or not she would shortly thereafter be released subject to supervision (with or without a residential restriction) we do not know but a return in the interim to prison was required; and (2) whatever the future might hold, the irretrievable fact was that she had in consequence of Charge 5 spent several months more in custody than had Lai.

13.Added to this unusual history, was the further and important fact that there was but a short term of imprisonment remaining in the case of Fan, namely, 85 days.

14.In light of all these circumstances, the overall justice of the matter seemed to us best met by making an order setting aside the sentence imposed upon Fan in the court below in relation to Charge 2 and substituting therefor such sentence as would effect her immediate release.

Mr Michael Blanchflower, SC and Ms Chyvette Ip, instructed by Messrs David Lo & Partners for D5/Appellant

Mr Gerald McCoy, SC, Counsel on fiat instructed by Department of Justice, for the Respondent