ATTORNEY GENERAL v. MAO KY KHOANG and Others

Headnote

No power to backdate a sentence: the sentence passed should fully reflect any discount given

IN THE COURT OF APPEAL

1994, No. 4
Application for Review

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J U D G M E N T

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Silke, V.-P.:

1. On 25th January 1994, the respondents pleaded guilty to two counts in a three-count indictment. Those counts were first, burglary. The particulars alleged that it took place on 10th January 1993 in an office of the Water Supply Department at Shek Pik on Lantau Island. The second was robbery on 13th January 1993 in a stone hut at Shui Hau Village, Lantau Island.

2. His Honour Judge Yam, as he then was, sitting as a Deputy Judge of the High Court, sentenced them each to a period in total of 4 years' imprisonment. As a result of submissions made to him, he went on to say:

"I accept what your counsel have said, and your sentence shall run from 4th February 1993."

3. The Attorney General, under the provisions of section 81A of the Criminal Procedure Ordinance, asks this court to review the sentences passed, with particular reference to the backdating, on the basis that a sentence in that form is wrong in principle and/or not authorised by law.

4. Briefly, the facts of the offences were that these five men are Vietnamese detained pending decision on their status. They had been detained in Tai A Chau Camp. They left that camp on a raft and went to Lantau where they committed this burglary taking, in the course of it, a torch-radio, a shaver and a chopper.

5. They then committed the robbery. They tied up an eleven year old boy and threatened him with a knife. When his sister came to the stone hut she was pulled into the hut and threatened with a knife and the hut itself was ransacked. In a next door stone hut they tied up an elderly man and threatened him with a chopper and another man was also threatened with a chopper. They eventually stole ten eggs.

6. The trial judge was of the view, and quite rightly, that this was a serious robbery irrespective of the actual proceeds that the robbers achieved. There was violence used, all of them carried knives, knives were used to threaten and they were a gang.

7. He took as his starting point a period of 7 years' imprisonment and reduced that because of their pleas of guilty and then thought that they should equally well be entitled to discount of 10 months for the period they had spent on a form of bail in Chi Ma Wan Upper Detention Camp.

8. What had happened was this. They were arrested on 14th January and on 16th January, as is required, they were brought before a Magistrate. They were then remanded in police custody pending identification parades. On 21st January, they again appeared before a court and were remanded to 4th February in jail custody. On 4th February, when they appeared, they asked for and, were granted, bail. There was some doubt as to whether they expressed a wish that the period of their bail be spent in Chi Ma Wan, but be that as it may, the apparent object of asking for bail was to go back to closed camp custody. In the camp from which they had come there were members of their family. On 7th April, they were committed for trial and the bail which had been granted to them on 4th February was extended. On 10th December, they appeared before Judge Yam on a pre-trial review and at that time, counsel acting on their instructions, requested that the bail be revoked and they were rendered into the custody of the Commissioner of Correctional Services again.

9. Under Section 67A of the Criminal Procedure Ordinance, the Commissioner of Correctional Services, in computing the totality of a sentence of imprisonment, is entitled to take into consideration any prior period in custody before the sentence is passed and which has been spent in custody as a result of a court order. This does not, as has been pointed out by this court on numerous occasions, encompass a period spent in Immigration custody and which is not the result of a court order. Here, of course, there is the added complication that the respondents had been given a form of bail and, in normal circumstances, the period spent on bail would not count, or be permitted to count, towards the computation of the sentence.

10. It is not contested and it is obviously right that the form of sentence passed by the trial judge was unauthorised by law. If authority is needed for that it is contained in the Attorney General v. Wong Man Kei, Application for Review No.4 of 1992. There is no power in a court to backdate sentence in this fashion.

11. But what the trial judge was attempting to do was to give the respondents an allowance for the 10 months which they had spent in the closed camp of Chi Ma Wan Upper Detention which is a camp to which persons who have committed disciplinary offences within other camps are sent and where there is a strict regime and prison clothes are worn. We considered that we should give effect to the judge's intention even though we think that the sentences were very much on the lenient side.

12. To effect this, we would set aside the sentence of 4 years' imprisonment imposed on the robbery count and substitute for it a sentence of 3 years and 2 months. That does give effect to the intention of the trial judge which was manifest when he imposed the sentences which were themselves not authorised by law in the form they were made.

13. The Attorney General's Review will be allowed to that extent.