MA ZHU JIANG v. SECRETARY FOR JUSTICE

HCAL 115/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 115 OF 2008

----------------------

----------------------

----------------------------------------

J U D G M E N T

--------------------------------------

1.  On 23 November 2008 I heard argument on this application for judicial review.  At the conclusion of the argument I allowed the application.  These are my reasons for that decision.

The issue:

2.  The issue in this case is the correct interpretation of s 67A Criminal Procedure Ordinance, Cap 221, (CPO), which relates to the computation of sentences of imprisonment, and credit for time spent in custody prior to a sentence being passed.

The facts relating to the charges:

3.  On 22 March 2001, the Applicant was arrested and cautioned for the offence of theft.  On 3 May 2001, he was formally charged with two counts of conspiracy to deal with property known or believed to represent the proceeds of an indictable offence contrary to Common Law and s 25 Organised and Serious Crimes Ordinance Cap 455. On the same day three charges, all identical, for that offence, were filed in Eastern Magistracy, (the 2001 charges).

4.  The charges related to three US dollar cheques ranging in value between US$704,000 and US$1,257,000, drawn upon bank accounts held by three substantial entities, the Ford Motor Co, Huntsman Petrochemical Corporation, and Publicis & Hal Riney, and payable to three different American companies.  It was alleged that the Applicant was a member of a syndicate in Hong Kong which had been able to obtain these genuine cheques, although none of the members of the syndicate were entitled to them.  Bank accounts were then opened by members of the syndicate using company names virtually identical to those stated on the cheques as the payees.  The cheques were then presented, the proceeds credited to the accounts, and subsequently withdrawn.

The Applicant is taken into custody:

5.  The Applicant was remanded in police custody upon his arrest and charge on 3 May 2001.  On 4 May 2001, he was brought before Eastern Magistracy where he was denied bail and remanded by the court to the custody of the Commissioner for Correctional Services, (the Commissioner).

6.  Subsequently on application to the High Court he was granted bail pending trial on 12 June 2001.  He was released from custody on 18 June 2001, when the bail conditions imposed were met.  Consequently, the Applicant was in police custody for one day, and in custody by an order of the court for 45 days, a total of 46 days.

The progress of the charges:

7.  On 12 October 2001, the prosecution withdrew the 2001 charges because six American witnesses were not available.  On the same day the Applicant was informed by the Department of Justice by letter that an evidence obtaining exercise was underway in relation to the six American witnesses, and that he may be rearrested.

8.  On 24 March 2005, some 3½ years later, he was rearrested and brought before Eastern Magistracy on 26 March 2005.  The proceedings were transferred to the District Court where he faced four charges, (the 2005 charges).  Three of those charges were charges of dealing with property known or believed to represent the proceeds of an indictable offence contrary to s 25 Organised and Serious Crimes Ordinance Cap 455.  Mr Wong for the Commissioner accepts that the facts in relation to the 2001 charges and the first three 2005 charges are identical.  In simple terms, the prosecution had now resolved its evidential difficulties and intended to proceed against the Applicant on the charges for which he had originally been arrested.  But as those charges had been withdrawn, new charges had to be laid, and were accordingly allocated a new court file number.

9.  On 16 November 2005, following a trial, the Applicant was convicted on each of the three 2005 charges that were identical to 2001 charges.  On the same day he was sentenced to a term of imprisonment of five years on each charge, to be served concurrently.  The sentencing judge was informed of the fact that the Applicant had served 46 days in custody in relation to identical charges earlier, but this matter was put to the judge only on the basis that it was part of a delay which constituted a mitigating factor.  No suggestion was made then that the Applicant was entitled to 46 days credit as time served towards his sentence.

10.  Following the conviction and sentence, pursuant to s 86 CPO the Registrar of the District Court issued a Certificate of Sentence recording the term of imprisonment (the Certificate).  That document is sealed with the seal of the court and is signed by the Judge. 

11.  Although not required by the form provided for the certificate in the Schedule to the CPO, the Registrar, in accordance with what I understand to be his usual practice, endorsed on the Certificate information relating to the following matters: period(s) of detention prior to 1^st appearance in Court; date of 1^st appearance in Court; date of 1^st committal into (i) Police custody; (ii) Jail custody; the date of plea; date of transfer; period of bail; period of remand; date of conviction; and criminal record.

12.  All of this information will assist the Commissioner in his application of s 67A to the computation of the term of imprisonment to be served by the Applicant. 

13.  There is no statutory requirement that the information as to pre-conviction custody form part of the certificate.  As there is no such requirement it appears to me that this information does not form part of the Certificate, although it is in the document signed by the Judge.  It could equally well be communicated to the Commissioner by a separate document.  It appears that it is merely a matter of convenience that this additional information is endorsed upon the Certificate.

The request for credit for 46 days:

14.  In June 2007, the Applicant’s solicitors wrote to the Commissioner reminding him of the period spent by the Applicant in custody in relation to the 2001 charges and asserting that that period should be taken into account in calculating the sentence.  The solicitors received no reply to that letter.

The appeal:

15.  The Applicant had previously applied for leave to appeal both the conviction and sentence, and that matter came before the Court of Appeal on 26 June 2007.  Judgement was reserved, and was ultimately delivered on 20 August 2007.

16.  The application for leave to appeal against conviction was dismissed.  Although the delay in prosecuting the Applicant featured in the Court’s consideration of the application for leave to appeal against the sentence, it did so only in the same way it had before the sentencing judge, namely in relation to a submission that the delay in proceeding with the prosecution was a mitigating factor.  The application for leave to appeal against the sentence was dismissed.  Nothing having been said to the Court of Appeal on the issue of whether the applicant was entitled to a credit for the 46 days, nothing was done in that respect.  It is unfortunate that this matter was not brought to the attention of that court.

17.  The Applicant returned to the custody of the Commissioner to serve his sentence.

The request for credit is renewed:

18.  On 30 November 2007, the Applicant’s solicitors again wrote to the Commissioner in relation to the period of time in custody on the 2001 charges.  This time the Commissioner replied, and by letter dated 13 December 2007, said that that period of time would not be counted in the sentence unless there was a direction of the Court or the Prosecution to the contrary. The Commissioner took the position that any period accountable in relation to the Applicant’s imprisonment must be stated on the Certificate.  The letter went on to say:

“We have confirmed with the Court that ESCC 1445 of 2001 was withdrawn by the Prosecution and the present case DCCC 388 of 2005 of your client was transferred from ESCC 1361 of 2005, and therefore the detention period of ESCC 1445 of 2001 would not be counted into the present case without the direction of the Court order Prosecution.”

19.  On 18 December 2007, the Applicant’s solicitors wrote to the Registrar of the District Court requesting an order that the Commissioner take into account the Applicant’s period in custody on the 2001 charges in calculating the sentence.  The Registrar replied to the solicitors informing them that District Judge P Li had made a direction in the following terms:

“This matter concerns the interpretation by the Commissioner of Correctional Services Department on s 67A CPO.  The defendant should challenge the decision of the Commissioner by Judicial Review.  It is inappropriate for the Registrar of the District Court to interfere.”

20.  On 2 January 2008, the solicitors wrote to the Department of Justice requesting them to explain the situation to the Commissioner for Correctional Services to enable the period in custody arising from the 2001 charges to be taken into account.  The Department Justice replied saying that the proper channel was to challenge the decision of the Commissioner by Judicial Review.

The legislation:

21.  The relevant passages of s 67A, which is entitled “Computation of sentences of imprisonment”, are as follows:

“(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,….

(1A)  The length of any sentence of imprisonment imposed on a person by a court shall also be treated as reduced by any period during which he was, immediately prior to his first appearance in court in connection with any proceeding relating to the offence for which the sentence of imprisonment was imposed, in custody –

(a)  of the police, Customs and Excise Department or Independent Commission Against Corruption in connection with that offence; or

(b)  under Part VII of the Immigration Ordinance (Cap 115) in connection with that offence.”

22.  It is to be noted that neither the sentencing court, nor the Commissioner, has a discretion in relation to any credit for time served prior to conviction.  The operative words in s 67A, “shall be treated”, and “shall also be treated”, are mandatory, requiring a sentence to be treated as having been reduced by the pre-conviction custodial period.

23.  In relation to the Applicant’s custody, the period of time spent in custody following the refusal of a magistrate to grant him bail, (45 days), falls to be dealt with under s 67A (1), and the period of time spent in custody following his arrest, (1 day) falls to be dealt with under s 67A (1A).

24.  The case for the Commissioner, rejecting the credit, is primarily founded on the basis that the Commissioner was bound by the provisions of the certificate of sentence issued under s 86 CPO, and that unless a prior period of custody was endorsed upon that certificate, it could not be taken into account.  The case for the Commissioner further depended upon an argument that as a new number had been allocated to the 2005 charges could not be said that the 2001 charges were proceedings relating to the sentence will be offence for which it was passed, nor were the 2001 proceedings, proceedings from which the 2005 charges arrives.

The issue as to the 45 days:

25.  Mr Kwan points to the fact that the subject matter of the three charges upon which the Applicant was remanded in custody were identical to the charges for which he was ultimately sentenced.  His case is that had there been no evidential difficulty on the part of the prosecution those charges would have proceeded to trial and upon conviction the Applicant would have been entitled to credit for the 45 days he had spent in custody.  Mr Wong accepted that proposition.

26.  Mr Kwan says that the 2001 charges were contained in proceedings which were the initial proceedings from which arose the subsequent proceedings involving the 2005 charges, upon which the Applicant was ultimately sentenced.

27.  Mr Wong’s argument emphasised the expression “proceedings”.  There were, he said, two distinct sets of proceedings.  They had been given different numbers, and that identified them as different proceedings.  Thus, he said, there could be no credit.

28.  But the expression used in the Ordinance is:

“any proceedings relating to the sentence or the offence for which it was passed” (emphasis added)

It simply cannot be argued that the 2001 proceedings and the 2005 proceedings were not both proceedings relating to the offence for which(the sentence) was passed.  It is right that the two sets off proceedings began in the magistracy under different numbers, but both sets of proceedings were in respect of the same offence, the offence of dealing with the proceeds of an indictable offence, and in both sets of proceedings the same cheques were at issue.  

29.  Plainly, the Applicant was committed to custody in 2001 in relation to the same offences for which he was subsequently convicted and later sentenced in 2005.  In my view it would be entirely unjust that the Applicant should not be able to have credited to him 45 days spent in custody in relation to the very facts for which he was convicted simply because the prosecution were unable for practical reasons to proceed with the charges against him at the time he was first sent to custody.  A purposive interpretation of s 67A ensures that this injustice will not occur.

30.  Mr Wong sought to rely upon the extradition scenario to substantiate his argument.  If the expression “in connection with any proceedings” were to be interpreted as suggested in para 30-32 above, then he said that a man would be entitled to credit for time spent in custody overseas during the extradition process. 

31.  He drew my attention to AG v Shamsudin [1987] HKLR 826 which held that such a period of custody was not automatically credited to a sentence.  In reaching its conclusion on the issue court dealt specifically with s 67A (1) CPO. 

32.  But an examination of the decision at p 832 shows that the conclusion was reached as a result of the true interpretation of the expression ‘court’ in s 67A(1), which limited that expression to a Hong Kong court, and not an overseas court.  The decision in Shamsudin does not depend upon the interpretation of the expressions at issue in these proceedings.

33.  Next Mr Wong argued that the Commissioner could not make any adjustments to the sentence as set out in the Certificate.  The only thing he could do, Mr Wong argued, was to give credit for such periods meeting the requirements of s 67A as were set out in the Certificate.

34.  There are two answers to this contention.

35.  First, the information as to time spent does not form part of the Certificate, and even if omitted from the Certificate, simply as a matter of law, namely the proper application of s 67A, the Commissioner would be obliged to give appropriate credit.  In such a case when presented with the appropriate information he would be required to make an appropriate decision, which would be open to judicial review. 

36.  It would be entirely artificial to say that because the administrative act of the Registrar of the District Court had omitted information that is not required by the Certificate, the Commissioner could not give credit as required by law in s 67A, but instead the prisoner must appeal, or seek Executive clemency.

37.  Second, there is nothing wrong in the Commissioner “adjusting” a sentence by way of computing the earliest release date in accordance with the law.  The Commissioner does so every day when he receives a prisoner and calculates his earliest release date, giving him credit for good behaviour as required by Reg 69 of the Prison Rules, Cap 234.  That is a discretionary credit which is reduced in the case of bad behaviour.

38.  I see nothing different in the administrative act of the Commissioner in applying the law laid down in Reg 69, and in the administrative act of the Commissioner in applying the law laid down in s 67A CPO, whether or not the information required for that matter is set out in the Certificate, or subsequently supplied to the Commissioner.

39.  In the light of the fact that there is no requirement in the form for the Certificate to contain any information as to pre-sentence custody, the suggestion that a man would not be entitled to the full benefit of any credit due under s 67A if, at the same time as the Certificate is sent to the Commissioner, the Registrar by a separate document informed the Commissioner of any pre-sentence custodial details, must be wrong.  It must be equally wrong to refuse the credit if the Registrar, by oversight, omitted to inform the Commissioner of pre-sentence custody details, and those details were supplied by the prisoners advisors.  But that would be the effect of Mr Wong’s argument.  If the Commissioner has any doubt as to the details in such a case it will be a simple matter for him the check those with the court.

The issue in relation to the 1 day police custody:

40.  The appropriate question that must be asked in relation to the 1 day period of police custody is whether that time in custody is whether that time:

“in connection with any proceedings relating to the offence for which the sentence of imprisonment was imposed”.

41.  The crucial words in the interpretation of this expression are the words “relating to the offence for which the sentence of imprisonment was imposed”.

42.  The complete answer to this question is that provided in para 29-30 above.  Quite plainly the Applicant was in custody in 2001 for the same offence for which the sentence was passed in 2005.  The matter is unarguable.  Again, it would be entirely unjust that because the 2001 charges did not proceed immediately to a conclusion they should not be said to be proceedings relating to the offence for which the sentence was imposed.

43.  The flaw in Mr Wong’s argument may be seen when it is appreciated that on his argument a prosecutor may lay a charge against a man who is then incarcerated pending trial.  Immediately prior to trial the prosecutor withdraws the charge instead of amending it, and immediately commences new proceedings, but with a different charge in respect of the same facts.  Because these are new proceedings they will be allocated a different court number.  On Mr Wong’s argument, because those new proceedings are not commenced under the same court number as the original proceedings there would be no entitlement to credit for the time served.  That must be wrong.

44.  In this case the issue is even clearer, because the same charges were laid in 2005 as were laid in 2001.  The charges in 2005 were in respect of the same offence as the 2001 charges.

45.  Mr Wong is right when he says that the best time at which this issue should have been dealt with is either at the time the Applicant was sentenced by bringing the matter to the attention of the sentencing judge in court, or at the hearing of any appeal against sentence.  But that that was not done is not a basis to deny the Applicant the benefit the true interpretation of the law.

46.  But Mr Wong must be wrong when he says that the only remedies now open to the Applicant are either an application for leave to appeal against sentence out of time to the Court of Final Appeal, or a reference by the Chief Executive under s 83P CPO to the Court of Appeal, or a plea for commutation of sentence under the Chief Executive’s prerogative powers.

47.  The decision of the Commissioner to deny the credit of 46 days to the Applicant was a decision made by the Commissioner in the exercise of his public duty to keep in his custody prisoners, lawfully, for the correct length of time.  That public duty requires the Commissioner to apply the provisions of s 67A, in accordance with the true interpretation of the law, to the Applicant’s circumstances.  He has not done so.  Such a decision is plainly amenable to judicial review.

48.  I accept that there may be occasions in which the line to be drawn by the Commissioner, should the matter not have been dealt with by the courts, will be fine.  Such a circumstance may arise where a fact situation similar to that of the Applicant arises, but where in the second proceedings quite different charges are laid, involving the same facts.   But those cases will be very rare and each case can be determined on its own merits. 

49.  It will be a matter for the Commissioner in the exercise of his duty to reach a decision as to the amount of credit to be given in accordance with s 67A.  Should a prisoner be dissatisfied with the decision of the Commissioner, he may seek to challenge it at judicial review.  Equally, should a prosecuting authority not be satisfied with the decision of the Commissioner, it too may challenge the decision by judicial review.  But that the Commissioner may occasionally face a difficult decision is no basis to refuse a man justice.

Conclusion:

50.  I am satisfied that on a true interpretation of s 67A CPO, where a man is arrested on charges for an offence, for which he is held in custody, whether police custody or order of the court, any time he spends in custody on those charges for that offence must be credited to any sentence passed on him in relation to those charges, whether or not the proceedings in which the sentence is passed are the same proceedings as those for which he was originally held in custody, or some subsequent separate proceedings commenced under a different court number.  This is not a matter which must be determined by reference to the vagaries of the court numbering system but by reference to the facts involved in the offences for which the sentence is passed.

51.  The application for judicial review must be allowed.  There will be an order of certiorari quashing the decision of the Chief Superintendent of Stanley Prison dated 13 December 2007.  There will be an order of mandamus requiring the Commissioner to deduct from the Applicant’s current detention the period of 46 days, served in relation to the 2001 charges.

Costs:

52.  Having heard counsel I made an order that the Respondent must pay the Applicant’s costs on a party and party basis.