HKSAR v. Bogoda Appuhamilage Pramesh Malinda Dharmawardena

HCMA 663/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 663 OF 2010

(ON APPEAL FROM STCC 905/2010)

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Before: Hon Wright J in Court

Date of Hearing: 29 October 2010

Date of Judgment: 29 October 2010

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J U D G M E N T

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1.This appellant forms one of a group of appellants, all of whom appeal sentences, imposed on them after pleas of guilty, with a starting point of 15 months imprisonment. Where other appellants had spent time in administrative custody, the Magistrates except for the Magistrate dealing with this appellant, each granted a reduction of 1 month from the 15 months starting point, irrespective of the length of the period for which they had been in administrative custody.

2.There are a good number of instances in non-immigration matters where, if a person has spent time in custody which would not be credited to them under the rules which govern the calculation of sentences, the court has acknowledged, to a greater or lesser extent, that period in custody by making some reduction in sentence.  One example that springs to mind is where someone has been detained in a foreign jurisdiction pending extradition.

3.It is well settled in these circumstances that it is within the discretion of the sentencer to allow some form of recognition by way of reduction of sentence.  I certainly accept the prosecution’s submission that the appellant is not entitled to a reduction but I think in this matter, given the fact that he formed part of this large group of people who have appealed and have now adopted a responsible approach to their appeals given the ruling of the Court of Appeal the other day, this appellant may have a justifiable sense of being treated unfairly unless he does receive some form of reduction.

4.The Magistrates who have granted reductions previously have granted a full month.  That seems to be remarkably generous but I can see no reason, in the specific circumstances of this appellant and without in any way suggesting that in future people should receive reductions or large reductions, not to grant, the appellant a reduction from 15 months to 14 months imprisonment.

5.Consequently, the appeal is allowed to the extent that the period of imprisonment is reduced to 14 months.

Ms Hermina Ng, Ag SPP of DOJ, for the Respondent

Mr Jonathan Acton-Bond, instructed by Messrs Krishnan & Tsang, for the Appellant