HKSAR v. Gurung, Rajendra Bikram

HCMA 55/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 55 OF 2012

(ON APPEAL FROM ESCC NO. 2353 OF 2006)

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JUDGMENT

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1.On 1 August 2006 the appellant was convicted on his own plea of wounding contrary to section 19 of the Offences Against the Person Ordinance, Cap 212 and sentenced to a term of 12 months imprisonment. The offence arose out of incident occurring at Stanley Prison where the appellant was an inmate serving a sentence of life imprisonment for murder.

2.In respect of the sentence of 12 months imprisonment for wounding the magistrate ordered that it be served consecutively to the sentence of life imprisonment.  The only ground of appeal is that the magistrate erred in doing so and should have ordered that the wounding sentence run concurrently with the life sentence.

3.Leave to appeal out of time in order to pursue this ground of appeal was subsequently granted by Tong J on 5 January 2012.

4.At the hearing of the appeal the respondent conceded the appeal and agreed that the wounding sentence should have been ordered to be served concurrently with the life sentence.

5.The law in Hong Kong is as laid down in the decision of the English Court of Appeal in R v Foy [1962] 1 WLR 609, followed by Duffy J in R v Ngai Au Sang & Anor HCMA 202/1995.  The reasoning behind this law is quite simple – imprisonment for life is precisely that.  It comes to an end on the death of the prisoner unless certain action is taken in accordance with the provisions of the Long-term Prison Sentences Review Ordinance, Cap 524.

6.However, at the time this appellant was sentenced before the magistrate no such action had been taken and he was a person serving a life sentence. Consequently it is impossible for the sentence imposed by the magistrate to come into operation for it could only be activated upon the death of the appellant.

7.For this reason, I quashed that part of the magistrate’s sentence by which he ordered that the 12 months imprisonment for the wounding offence be served consecutively to the sentence for life imprisonment and in its place ordered that the sentence be served concurrently with that life sentence.

Ms Samantha Chiu SPP, of Department of Justice, for the respondent

Mr John Patrick Murray, instructed by Messrs A M Mui & Kwan assigned by D.L.A, for the applicant