HKSAR v. Law Chun Man

CACC 325/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 325 OF 2011

(ON APPEAL FROM HCCC NO. 341 OF 2010)

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D E C I S I O N

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Hon McWalters J (giving the decision of the Court):

1.On 13 July 2012 we handed down our judgment in this appeal against sentence we granted leave to the applicant and reduced the sentences imposed upon him in respect of four offences which reflected a course of intimidation against the one victim by means of arson and a bomb hoax. The sentences imposed by this Court for the offences of which he stood convicted were:

1^st count:  conspiracy to commit arson - 6 years imprisonment;

2^nd count:  arson - 8 years imprisonment;

4^th count:  arson - 10 years imprisonment

2.In respect of the 3^rd count which is the offence of placing an article with intent of inducing another to believe that it is likely to explode, we confirmed the sentence of the trial judge, namely a sentence of 3 years imprisonment.

3.We then had to determine what total sentence should be imposed upon the applicant for his crimes.  For the reasons set out in our judgment we decided that a total sentence of 13 years imprisonment should be imposed.  In order to achieve this sentence it was necessary for the Court to make use of its power to order a sentence or sentences to run consecutively or partially consecutively to another or other sentences.  To this end we ordered that:

“1 year of [the sentence for count 3] is to be served consecutively to the sentences for the other counts. Additionally 2 years of the sentence for count 4 is to be served consecutively to the sentences for the other counts. Otherwise all sentences are to be served concurrently thereby making a total sentence of 13 years imprisonment.”

4.However because the sentence for count 4 is the longest of the four sentences it is not possible for any part of it to be served consecutively to the other sentences.  The effect of our order was to impose only a total sentence of 11 years imprisonment, not the 13 years that the Court intended.

5.When this anomaly was brought to our attention by both counsel who appeared on the appeal we sought their assistance on whether this Court had the power to now re-open the appeal and amend its judgment in order to ensure that its orders gave effect to its manifest intention to sentence the appellant to a period of 13 years imprisonment.

6.In a very helpful joint submission counsel have suggested that this Court does have the power.  We are indebted to counsel for the thoroughness of their researches.

7.If counsel are correct then the simplest and appropriate way of giving effect to the Court’s intention is to order that the whole of the sentence for count 3 (ie 3 years imprisonment) be served consecutively to the sentences for the other counts but that otherwise the sentences for the other counts should be served concurrently.  Can the Court now so order?

8.Once the judgment of the Court is finally recorded then the legal principles of functus officio would, in the normal course, operate to deprive this Court of jurisdiction and to prevent it from re-opening the appeal and amending its judgment.  As to when a Court’s judgment is finally recorded and the legal consequences of that happening has become known as the perfection rule.  There is no doubt that the order of this Court has been perfected.  The judgment has been signed by all the members of the Court; it has been handed down and notice of the determination of the Court of Appeal has been transmitted to the Commissioner for the Correctional Services in accordance with Rule 62 of Criminal Appeal Rules.

9.The purpose of the perfection rule is to achieve finality of litigation.  In characterising this rule as one of “high importance” the Court of Final Appeal in HKSAR v Tin’s Label Factory Ltd (2008) 11 HKCFAR 637 and at 649I said:

“But it would not be conducive to public confidence in the administration of justice if both the prosecution and the defence can re-open the matter endlessly before the judge. This would not be in the interests of the community. And it would occasion unfairness to the appellant who had been convicted at trial, with the stress, uncertainty and expense involved. There must be an end to the controversy as far as the appellant process … is concerned. The perfection rule is directed to achieving that purpose.”

10.Because of the importance of the principles underlying the perfection rule, any power which allows a departure from the rule must itself be exercised on a principled basis.  Clearly the power should not be used as an impermissible “back-door” means of re-opening the appeal for the purposes of reviewing or reconsidering the judgment issued, or for altering the basis or rationale of the judgment.[1]

11.A power which enables departure from the perfection rule does exist and it has become known as the “slip rule”.  This power enables the Court to amend its judgment notwithstanding that its order has been perfected.  It is, understandably, a very limited power and the question is whether, in the circumstances of this case, this Court is entitled to have recourse to it for the purpose earlier described.  The power is intended to be used to correct errors or omissions in a Court’s judgment to ensure that that judgment reflects and implements the intention of the Court.  The existence of this power was recognized by the Court of Final Appeal in HKSAR v Tin’s Label Factory Ltd (2008) 11 HKCFAR 637.  At page 651D, the Court said at [35]:

“The courts in criminal cases have the power to amend a perfected order under the slip rule. R v Saville [1981] 1 QB12….. This power is distinct from its power to alter an order before its perfection and should not be regarded as an exception to the perfection rule. In amending an order under the slip rule, the court is not changing its order. What is being done is to ensure that the order accurately reflects what the court had originally intended when making it. See Burrell v R at para 21.”

12.The reference to Burrell v R is to a passage in a judgment of the High Court of Australia.  It can be found in (2008) 238 CLR 218.  Para 21 of the judgment reads as follows:

“The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provided no-substantial qualification to that rule.[2] The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let above alteration, of the substance of the result that was reached and recorded.”

13.In the present case there is no error or omission in relation to any factual matter underlying the Court’s individual sentences.  Those sentences are clear.  Equally clear is the Court’s intention to sentence the appellant to a total sentence of 13 years imprisonment.  Those individual sentences and the clearly expressed intent to impose a total sentence of 13 years are the substance of the Court’s judgment.  The Court is not contemplating changing that substance.

14.In its judgment it sought to achieve its sentencing goal by recourse to its power to order consecutive sentences.  In the change now contemplated the Court will again have recourse to this power.  The error that arose in the Court’s earlier judgment was not from whether, as a matter of legal principle, this power could be employed or should be employed but merely from how it should be employed, ie from a mechanistic use of the power.

15.We are of the view that amending the Court’s order in the way proposed does not alter the basis or rationale of the judgment and is not therefore an amendment or alteration of substance.  Its sole purpose is to ensure that the manifest intention of the Court is not frustrated by an order whose terms were erroneously conceived.  Such an amendment is permitted under the slip rule.  We therefore order that paragraph 47 of the Court’s judgment of the 13 July 2012 be amended so that it reads as follows:

“The sentence for count 3, namely 3 years imprisonment, remains the same but we order that the whole of this sentence is to be served consecutively to the sentences for the other counts. Otherwise all sentences are to be served concurrently, thereby making a total sentence of 13 years imprisonment.”

Mr Lai Kim-wah Derek SPP, of Department of Justice, for the respondent

Mr Poon Chin-ping Jackson, instructed by C O Yu & Co assigned by D.L.A, for the applicant (on sentence)

The applicant appeared in person (on conviction)

[1]       See R v Jones; R v Hili (No. 2)(2010) 79 NSWLR 143.

[2]       i.e. the perfection rule.