THE QUEEN v. DAVID HENRY EDWARDS

1991, No. MA1096

HEADNOTE

Magistrate's Appeal - sentence - time spent in custody awaiting extradition - principles.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1096 OF 1991

(ON APPEAL FROM EASTERN MAGISTRACY

CASE NO. E13112 OF 1991)

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J U D G M E N T

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1. This is an appeal against sentence imposed by Mr. Wright at the Eastern Magistrate's Court. The appellant pleaded guilty to an offence of Conspiracy to Defraud and was sentenced to imprisonment for 12 months.

2. The appellant has had a chequered career, he had been a police officer who had to leave the force in some disgrace and he has carried out a sophisticated fraud on the public. He set up a Currency Brokers Company in 1985, whose object was to carry on business on a world-wide basis. Two years later it was wound up, hopelessly insolvent. This company was really being run by a Mr. Flickinger, an American, who is awaiting trial.

3. He was originally charged with illegal bookmaking, was given bail and when he discovered that a more serious charge might be preferred he absconded from bail. He was arrested in England in September 1990, and extradition proceedings were started. This took some time because the papers had to be prepared for this conspiracy charge which was a.sophisticated fraud. The extradition proceedings were contested, but eventually because of the prolonged hearing in June 1991 an arrangement, if I can describe it as that, was entered into between the Appellant and the Hong Kong Government. He agreed no longer to contest the extradition, he was given bail and it was decided to prosecute him only in the Magistrate's Court. He was eventually extradited in September 1991.

4. At the hearing in the Court the Magistrate took as a starting point 20 months for the offence, and discounted it to 12 months for the plea and other mitigating factors. This was on any view a serious fraud and should have merited a sentence of 3 years, but the Magistrate was bound by the arrangement which had been made to give him jurisdiction.

5. I therefore consider the sentence low.

6. The grounds of appeal, however, relate solely to the fact that the Magistrate refused to give an additional discount for the period of time - some 9 months - spent in custody in England awaiting extradition.

7. The Magistrate, whilst recognizing that there were instances where such time could count, considered himself bound by 'dicta' of Silke J.A. (as he then was) in R. v. Wong Hoi Crim. App. 354/1985 such as to disentitle the Appellant to any discount.

8. In England, it has always been accepted that the sentencing Judge has a discretion whether to allow time spent in custody awaiting extradition to count against sentence. In R. v. Scalise and Rachel (1985) 7 Crim. App. R. 395, Lawton L.J. castigated the conduct of two American robbers who had used every possible legal channel to avoid extradition and who had, as he said "played the system"; nevertheless he did not disapprove of the trial Judge's approach of allowing the full period of 3 years spent in custody against sentence.

9. In R. v. Stone (1988) 10 Crim. App. R. 322, the Court of Appeal reiterated that what period of time is allowed against sentence is a matter of discretion. There the trial Judge had allowed 12 months out of 15 months against sentence, and the Court stated "The law does not say that a trial Judge has to take into account the full period that a man has spent in custody. all it says is that he has to take it into account."

10. In Hong Kong, Yang J.A. (as he then was) in R. v. CHOW Yung Crim. App. 139/1985 allowed the full period of time spent awaiting extradition,,from Australia against sentence. However, later that year in R. v. Wong Hoi Crim. App. 354/1985 the Defendant had "decamped to the U.S.A. and it was necessary to seek him out there"; he had spent 4½ months in custody. Silke J.A. said:

"The Applicant himself is the author of his own misfortune. He went to the United States where he co-operated with a member of Independent Commission Against Corruption who visited him there. Nevertheless, it was necessary to extradite him and he cannot complain of the period which he then spent in custody. It should not be a matter to be taken into consideration in the overall sentence."

11. In A.G. v. shamsudi (1987) HKLR 826 Cons V-P when assessing the appropriate sentence said at p. 833 "Nevertheless effect still has to be given for the discretionary allowance reflecting the one year spent in England".

12. Recently, in R. v. Peffer (1991) Crim. Law Rev. 728 Lane L.C.J. Said:

"All matters had to be considered - why did the offender go to the foreign country? Why did he stay there? Why was there resistance to extradition proceedings? It should not be thought by those who fly the country in the hope of evading justice that if they are caught and remain in custody in a foreign country for a period of time, that.that time will by any means be necessarily considered as if it had been spent in this country serving the sentence imposed by the English court. The sentencer had made a reduction in the sentence of 14 months: that was not a miserly adjustment and the appeal would be dismissed."

13. As this Appellant had deliberately left Hong Kong, the Magistrate considered he was the author of his own misfortune and therefore bound by what Silke J.A. had said.

14. In my judgment, Silke J.A. was not laying down any principle that those who deliberately leave the jurisdiction are automatically disentitled to a discount; he was merely dealing with the facts of that particular case.

15. There is no doubt that time spent in custody awaiting extradition is a relevant factor in the sentencing process, as has been recognised over the years. What, if any, proportion should be allowed against sentence is dependent on all the facts of each particular case and the factors set out by Lane L.C.J. in Peffer are obviously relevant.

16. As far as this Appellant is concerned, he did deliberately flee Hong Kong - nevertheless he co-operated with the prosecuting authorities in England, and as in A.G. v. Shamsudin saved considerable time. He is therefore entitled to allowance for his period in custody.

17. Although I consider the sentence here lenient, it would be unjust to increase it so that a proper discount. can be given. I consider that 6 months should have been deducted from the sentence to give allowance for the time spent in custody in England.

18. The appeal against sentence is allowed and it is reduced to 6 months. As the Appellant has spent some 4 1/2, months in custody, he may be released today.