HKSAR v. CHEUNG LAI SING, DICKSON

CACC 137/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 137 OF 2003

(ON APPEAL FROM DCCC 1232 OF 2002)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Introduction

1. On 11 March 2003, the Applicant pleaded guilty in the District Court before Judge Chua to four charges of theft for which, on 25 March 2003, he received an overall sentence of sixteen months and twenty-one days' imprisonment. This was described by the judge as "lenient". In view of the serious breaches of trust involved in these offences, we can respectfully agree with that assessment and we have considerable reservations about whether taking such a lenient course was appropriate. However, despite the fact that this matter is now listed as an application for leave to appeal against sentence, somewhat unusually this consideration, related to the question of leniency, misplaced or otherwise, is an irrelevance.

2. The grounds of appeal can be summarised as a plea to this court to intervene in order to correct what is perceived by the Applicant to have been an injustice in the way that the Correctional Services Department (CSD) has applied the "time already served" by him in satisfaction of an earlier sentence passed on him in the Kowloon City Magistrates' Court which, it was argued, should be available to him on the sentence he is presently serving.

3. The background facts are simple. Adopting Mr Madigan's helpful summary, the Applicant worked for a company as a jewellery designer and in the course of his employment would take diamonds from diamond wholesalers to show potential customers. After an appropriate period, the Applicant would either return the diamonds or pay the invoiced price for them.

4. In the early part of 2002, the Applicant found himself in dire financial straits. In April, he took two diamonds from a company (Regasus) and kept them without paying. Under pressure, he wrote a cheque on 25 April 2002 to Regasus for $90,148 which was dishonoured on presentation. The account was in the name of the Applicant but it had been closed for four years.

5. The Applicant, in respect of the 'cheque' offence, was duly charged with evasion of liability by deception, contrary to section 18B(1)(b) of the Theft Ordinance, Cap. 210. He pleaded guilty, and on 13 March 2003, after several earlier appearances, he was sentenced to two months' imprisonment in the Kowloon City Magistrates' Court.

6. Returning to events in 2002, between 25 April and 19 September 2002, the Applicant received various items of jewellery from two companies and, instead of returning them or paying for them, he pawned them for cash. So far as this conduct was concerned, in due course the Applicant faced the four charges of theft which are the subject of today's proceedings. The offences were committed in the space of just under four weeks between 22 August and 19 September 2002.

Sentence

7. When imposing sentence, the judge said:

"I adopt a starting point of 2 years, which is reduced by his pleas to 16 months. He is sentenced to 16 months on Charge 1. He is sentenced to 16 months on Charges 2, 4 and 5. Each sentence will run partially concurrent with the previous sentences and consecutive to them by 7 days, so that altogether, beginning with the sentence in the Magistrates' Court, he will serve 16 months 21 days." (Appeal bundle pp.12T-13C)

8. It is hard to understand from these words what was meant by the judge. However, the 'Certificate of Sentences', which was provided to the CSD when they sought clarification, states as follows:

"Amended 1st charge: Sixteen (16) months' imprisonment, to run consecutively to the sentence he is presently serving by Seven (7) days.

Amended 2nd charge: Sixteen (16) months' imprisonment, to run consecutively to the 1st charge by Seven (7) days.

Amended 4th charge: Sixteen (16) months' imprisonment, to run consecutively to the 1st and 2nd charges by Seven (7) days.

Amended 5th charge: Sixteen (16) months' imprisonment, to run consecutively to the 1st, 2nd and 4th charges by Seven (7) days."

9. However, the situation was not as straightforward as the Certificate appears to indicate. Although it may have seemed to the judge on 25 March 2003 that the Applicant ought then to have been serving a sentence of two months, which had only been imposed twelve days earlier, no enquiries were apparently made to see if this was in fact the case. As it turned out, he was not.

10. The briefest chronology reveals that on 23 September 2002, the Applicant was first taken into custody. This was in relation to the District Court charges. He has remained in custody ever since.

11. The first sentence to be imposed on the Applicant was at Kowloon City Magistrates' Court on 13 March 2003. The CSD calculated that the Applicant had already served his sentence of two months by that time having regard to the length of time he had by then spent in custody. However, it is the calculation related to this, and how it affects the Applicant's present sentence, which has led to the particular complaint raised in these proceedings.

12. In a memorandum from the CSD, dated 2 June 2003, addressed to the Director of Legal Aid, the calculation is set out as follows:

"According to our records, Mr Cheung was arrested on 23 September 2002 and he first appeared in court on 25 September 2002 in Case No. KCCC 15372/02. He was then remanded in CSD custody and the case was transferred to District Court on 4 December 2002 as DCCC 1232/2002.

2. On the same day, that was 4 December 2002, he was further charged for another offence in Case No. KCCC 19393/2002. On 13 March 2003, this case was sentenced to two months' imprisonment. Since he had been in custody for 99 days (i.e. from 4 December 2002 to 12 March 2003 inclusive), he warranted an immediate release in this case and continued to be remanded under the case DCCC 1232/2002.

3. On 25 March 2003, he was sentenced in case No. DCCC 1232/2002, certificate of sentences is self-explanatory. Since he had no presently serving sentence on that day (the sentence of KCCC 19393/2003 had already been served), thus we sent a memo to Court clarifying his sentence. On 31 March 2003, the Court confirmed that the total sentence was 16 months 21 days.

4. As to the calculation for his date of release, CSD has treated the sentences in these two cases separately since Case No. KCCC 19393/2002 had been closed on 13 March 2003. The 16 months and 21 days sentence in Case No. DCCC 1232/2002 will count from 25 March 2003. The 84 days in police and jail custody (from 23 September 2002 to 3 December 2002 and 13 March 2003 to 24 March 2003 inclusive) has been counted to reduce his sentence in accordance with Section 67A of the Criminal Procedure Ordinance, Chapter 221, Laws of Hong Kong."

13. Plainly, the judge was unaware of the true position because, from her sentencing remarks (above), she was apparently under the impression that the Applicant was still serving his two-month sentence despite the months he had spent in custody before that sentence was imposed.

The application

14. The complaint raised by Mr McGowan, on the Applicant's behalf, is that the way in which section 67A of the Criminal Procedure Ordinance, Cap. 221, and Rule 69 of the Prison Rules, Cap. 234, has operated in the present case has meant that the Applicant has very obviously been deprived of the benefit of a significant part of the time he had spent in custody pending the outcome of his case in the Kowloon City Magistrates' Court. Adopting the information supplied by the CSD, an inclusive period of ninety-nine days has been used to extinguish the two-month (or sixty-day) sentence passed in the Magistracy. Furthermore, this calculation does not take into account the usual one-third remission for good conduct under Rule 69 which would, in the normal course of events, have reduced the sixty-day sentence to forty days. On this aspect, enquiries have been made today which have established that the Applicant is entitled to full remission.

15. Mr McGowan submitted that in practical terms the Applicant has lost the benefit of fifty-nine days spent in custody which, as a matter of fairness, should have been capable of utilisation towards his present sentence. His reason for saying this was that if the Kowloon City Magistrates' Court case had been consolidated, as it always should have been, with the District Court proceedings, the Applicant would not have lost out in the way he has been demonstrated to have done.

16. The situation in which this Applicant finds himself has occurred because the two proceedings were not consolidated as clearly they should have been, because the judge did not take this into account, because she was unaware that the sentence passed by the magistrate had been completed and because of the CSD's consequent interpretation of the wording of section 67A of the Criminal Procedure Ordinance which states, so far as it is relevant to these proceedings:

"67A Computation of sentences of imprisonment

(1) The length of any sentence of imprisonment imposed on a person by a court shall be treated as reduced by any period during which he was in custody by reason only of having been committed to custody by an order of a court made in connection with any proceedings relating to the sentence or the offence for which it was passed, or with any proceedings from which those proceedings arose ......."

We do not think it necessary to analyse whether the CSD's interpretation was correct.

17. Mr Madigan, for the Respondent, has responsibly recognised the obvious injustice of the situation which has arisen. He has also accepted that there was an error by counsel for the Department of Justice in allowing the 'cheque' charge of evading liability to go to the Magistracy when it was so closely linked to the other offences which went to the District Court. Furthermore, his researches have revealed that the prosecution caused a number of adjournments, when seeking to obtain legal advice on the venue of trial and about consolidation, which had contributed to the length of time the Applicant would spend in custody if the CSD's computation is allowed to stand.

18. Mr Madigan suggested that if the charges had been consolidated, the sentencing judge would have, in all likelihood, arrived at a global starting point in the region of two years.

19. We consider in all the circumstances which have arisen in this case, many of which are highly unsatisfactory, that the Applicant has justification for feeling aggrieved. Had the two sets of offences been consolidated into one set of proceedings, the effect of section 67A would have been entirely different. The sentence would then have run from 23 September 2002, when the Applicant first went into custody, and have ended in late August 2003.

20. Having observed that there is merit in the arguments placed before us, we are satisfied that this is a proper case in which to intervene because of the unfairness which would undoubtedly be occasioned to the Applicant if we were not to do so. Similarly, in R v Burnley Magistrates' Court ex parte Halstead [1990] 12 Cr App R (S) 468, in judicial review proceedings in the English Divisional Court, it was shown that the Magistrates' Court had intended that the applicant should only serve fourteen days' imprisonment. However, a sentence to that effect added considerably to her existing term of detention in a young offender institution, because the applicant's remission entitlement was changed from a half to one third, a difference of seventy-four days. Bingham LJ said (at page 471):

"The ordinary rule undoubtedly is that questions of remission, like questions of parole, should be put out of the sentencer's mind. The rationale of the rule is clear and is rooted in fairness to the defendant, who may not earn remission. The position is plain if one considers an example. Suppose the court considered two years' actual custody to be the appropriate penalty and accordingly imposed a sentence of three years so that the defendant with remission of one third, namely one year, served that period. No practical inquiry would be caused to the defendant if he or she in fact earned full remission; but if he or she did not, and indeed earned no remission, the defendant would serve three years. The defendant would be then serving one year beyond what the court considered the appropriate penalty, not for the offence giving rise to the sentence, because that was thought worthy of two years' actual custody only, but because the defendant did not conduct himself or herself in prison so as to earn full remission. That would plainly be unjust and contrary to principle.

It would, however, be equally unjust if a rule formulated for the benefit of defendants were to be indiscriminatingly applied even where it worked to their disadvantage. Such would be the effect here if the court were obliged to shut its eyes to the practical consequences of a consecutive 14-day sentence under the Prison Rules, publicly promulgated for the better administration of prisons.

The Court of Appeal, Criminal Division rightly declined to shut its eyes in Cullen (CA March 22, 1989) and the court regularly reduces sentences where a defendant has effectively lost his or her liberty awaiting trial but in circumstances where that period cannot for any reason be counted against the sentence imposed."

21. We are satisfied, in all the circumstances, that the Applicant's grievance can only properly be remedied by ordering that his sentences should be reduced to a totality which would enable his immediate release.

22. Accordingly, we shall grant leave and, treating the hearing as the appeal, the appeal is allowed. We substitute for the sentences the Applicant is serving concurrent sentences such as would enable him to be released today.