HKSAR v. ASJAD BAIG

HCMA 180/2022

[2022] HKCFI 2982

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 180 OF 2022

(ON APPEAL FROM STCC 179 OF 2022)

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J U D G M E N T

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Introduction

1.  The appellant was convicted upon plea of one charge of taking employment while being a person in respect of whom a deportation order is in force, contrary to s38AA(1)(b)  and 38AA(2)  of the Immigration Ordinance, Cap 115 (“the IO”), before Mr David Cheung sitting at Shatin Magistrates’ Courts on 22 April 2022.  He was sentenced to 15 months’ imprisonment.  By his Notice of Appeal dated 29 April 2022, he now seeks leave to appeal that sentence.

Grounds of Appeal

2.  By his Perfected Grounds of Appeal dated 7 June 2022, the appellant submits:

Ground 1:   The trial magistrate had not been made aware that the Appellant had spent 216 days[1] in custody in relation to a previous criminal charge of taking up employment in breach of his conditions of stay, for which the Appellant was eventually acquitted on 23 April 2019. Had the magistrate been aware of the appellant’s period of judicial detention, the magistrate ought to have exercised his discretion to further reduce the appellant’s sentence to take into account the period of judicial detention the appellant had previously served.

Ground 2:   The Court ought to exercise its discretion to further reduce the appellant’s sentence for the above stated period of judicial detention that the appellant had previously served. 

3.  The single question before this Court therefore is in what circumstances a period of judicial detention, unrelated by nexus or proximity to the offence before a sentencing court, may be deducted from any sentence to be passed by that court?

Appellant’s Background

4.  It is appropriate at this point to set out the context in which the two sets of proceedings arose.

5.  The appellant is a Pakistani national who entered Hong Kong unlawfully by boat on 7 February 2007.  He was arrested in September 2007 and thereafter released upon recognizance having raised a torture claim.  In 2011, he was dealt with before the Shatin Magistracy under s38AA(1)(a)  of the IO and under s7A(1A)  of the Registration of Persons Ordinance, Cap 177.  For that offending, he received a total imprisonment of 20 months on 20 May 2011.  Whilst serving his sentence, the appellant’s torture claim was rejected by the Immigration Department on 8 August 2012 and a deportation order for life (“the Deportation Order”)  was issued on 25 October 2012.  He was eventually deported on 6 November 2012 after his release from prison.

6.  The appellant re-entered Hong Kong unlawfully on 2 January 2016 and was arrested on the same day.  Proceedings were taken against him for breach of the Deportation Order and for unlawful remaining.  On referral to the Immigration Department he sought to raise a non-refoulement claim.  On 4 February 2016, he was convicted of breach of the Deportation Order and for unlawfully remaining and received a total sentence of imprisonment of 18 months.  Given the date of his re-entry into Hong Kong and his immediate arrest, he would have been released from that sentence in early 2017.  His formal ‘second’ non-refoulement claim form was submitted on 11 April 2017.

7.  He was thereafter placed on recognizance whilst his second non-refoulement claim was processed.  That claim was rejected by the Director of Immigration on 10 May 2017.  His appeal to the Torture Claims Appeal Board (“TCAB”)  was dismissed on 13 March 2018.  On 27 March 2018, the appellant filed a Form 86 seeking leave to judicially review the decision of the TCAB.  This was refused by Deputy High Court Judge Bruno Chan on 23 July 2020.  On 27 August 2020, the appellant sought an extension of time to appeal that refusal and was granted time to appeal to the Court of Appeal[2].  On 4 June 2021, the Court of Appeal dismissed his appeal against refusal to grant leave for judicial review of the decision of the TCAB.  By notice of motion dated 23 July 2021, the appellant sought leave to appeal to the Court of Final Appeal against that dismissal, which was also refused.

8.  On 20 June 2018, whilst seeking leave to apply for judicial review, the appellant was arrested once again under s38AA(1)(a)  of the IO for taking employment whilst being a person in respect of whom a deportation order is in force.  These are the proceedings the appellant now seeks to rely upon for a reduction in sentence.  He was convicted after trial on 14 September 2018 and was sentenced to 22 months 14 days’ imprisonment.  The appellant appealed both conviction and sentence before Toh J under HCMA 489/2018, which was heard on 21 December 2018.  The appeal against conviction was successful and a re-trial was ordered.  The appellant remained in custody until he was granted bail on 22 January 2019.  The appellant was acquitted on 23 April 2019[3].

9.  In respect of those proceedings the appellant had been remanded in custody from the date of his first appearance before the magistrate until his conviction on 14 September 2018 (86 days[4])  and thereafter was serving a sentence until 21 December 2018 (99 days)  when a re-trial was ordered and thereafter he was remanded pending re-trial until 22 January 2019 (32 days)  at which time he was given bail.

Ancillary Proceedings

10.  After having been acquitted upon re-trial, on 3 June 2019 the appellant applied for compensation from a government scheme which is empowered to make an ex gratia payment to wrongfully convicted persons.

11.  A consideration of the judicial review decision in respect of the ex gratia payment dated 2 November 2021 is of assistance as the judge in judicial review had papers made available to him, which are not before this Court, in respect of the trial for which the appellant was ultimately acquitted.  The learned judge referred to part of the refusal notification made which read:

“It is important to note that ex gratia payments are only made in exceptional cases, and there is no general entitlement to recompense for wrongful conviction or charge.  For example, compensation will not be awarded in cases merely because the prosecution was unable to prove its case beyond reasonable doubt in relation to a particular charge.  Compensation may also be refused where there is serious doubt about the claimant’s innocence.

In determining whether or not your application falls within the [guidelines for payment of compensation], the grounds put forward by you, other information in relation to your case (including, in particular, the Statement of Finding of [the first trial], the judgment of [the appeal], relevant transcripts of proceedings of [the first trial], your cautioned interview made on 21 June 2018 at the Sheung Shui Police Station, the photographs taken at the scene by the police, materials relating to your bail application on 16 July 2018, the witness statements of [a police witness], and other available evidence which is relevant to your guilt or innocence)  and relevant judicial authorities have been considered in detail.

When considered in the round, there is nothing to suggest that your detention was due to any serious default by the Immigration Department, the prosecution or other public authority.  Whilst you were ultimately acquitted of the charge upon a retrial ordered by the appellant court, this was a case of the prosecution not being able to prove its case beyond reasonable doubt.  There was no exceptional circumstance to show that the position which you find yourself in constitutes an “outstandingly deserving case” for the purpose of the Guidelines either.  In any event, there is serious doubt about your innocence primarily in light of the circumstances of your arrest and the explanation you gave under caution.”

There was therefore nothing of an exceptional nature about the proceedings under STCC 2380/2018.  The application was refused on 18 March 2021.

The current proceedings

12.  The sentence currently under consideration was in respect of an offence committed on 19 January 2022[5], some 3.5 years after the offence mentioned above[6] for which he was ultimately acquitted and at a time when the appellant had exhausted all avenues of appeal under the UNHCR and would have been due to be deported once more.  There is clearly no connection in time as between the two sets of proceedings nor is there any connection between events.  The appellant was sentenced on 22 April 2022 to 15 months’ imprisonment after a guilty plea.  If he were remanded in custody as of the date of his arrest on 19 January 2022, he would be due to be released from custody in November 2022, if he were to achieve a full one third remission for good behaviour.  He now seeks to have the 216 days he spent on remand or serving a sentence under STCC 2380/2018 count against the sentence of 15 months’ imprisonment imposed by the learned magistrate in STCC 179/2022.  If that period of time or any part thereof were to be deducted from the sentence of 15 months’ imposed by the learned magistrate, the appellant would be due for imminent release.

Prosecution case under STCC 179/2022

13.  On 19 January 2022, Immigration and Police officers carried out a joint operation in San Po Kong.  They found the appellant wearing a pair of labourers gloves using a pallet truck to offload boxes of goods from a vehicle.  After an unsuccessful attempt to flee the scene upon identity check, the appellant admitted he was offloading goods at the scene for a monetary reward of HKD$400 and furnished a recognizance form.  On the material day, the defendant was found taking employment as an odd job worker in San Po Kong while being a person in respect of whom a deportation was in force.

Reasons for sentence STCC 179/2022

14.  The magistrate noted that the appellant had pleaded guilty, which was the strongest mitigating factor.  The Court of Appeal in HKSAR v Usman Butt & Another HCMA 70/2010 laid down the guideline sentence of 15 months’ imprisonment upon a plea of guilty in relation to s38AA offences for a first offender.  The appellant had one previous similar conviction in 2011 and was not a first time offender.  The magistrate was entitled to adopt a higher starting point but did not do so[7].  The magistrate was aware of when the appellant had first come to Hong Kong and the legal proceedings which resulted in the Deportation Order for life.  He was also aware that the appellant had returned to Hong Kong in breach of that order and that he had been dealt with for it.  There is no mention of the intervening trial, re-trial or acquittal.  There is nothing before this Court to suggest that the intervening set of proceedings and associated incarceration were raised with the court.  As a consequence, and perfectly properly, the learned magistrate took into account the fact that the only similar offence for which the appellant was convicted was in 2011 and that there had been a 10-year lapse between that and the current offending in 2022, albeit that the appellant had been out of the country from the end of 2012 to the beginning of 2016. Accordingly, the magistrate decided not to enhance the starting point for a first time offender and followed the guideline sentence of Usman Butt supra, sentencing the appellant to 15 months’ imprisonment after plea.  This was, as Ms Yuen has pointed out, a generous view, but one he was entitled to take.

Appellant’s submissions

15.  Mr Andrew Leung accepts that the appellant’s previous judicial detention had not been placed before the sentencing court[8].  It follows that the appellant does not suggest that the learned magistrate made any error as he had not been made aware of the issue now before this Court.  Mr Leung simply asks this Court to consider it for the first time.

16.  In his initial submissions, Mr Leung relied solely upon the decision of Madam Justice D’Almada Remedios in HKSAR v Iqbal, Zahid & Anor HCMA 44/2018; [2018] 2 HKLRD 832 (“Badhon”), under which the 2^nd appellant, Badhon, sought to have his period of imprisonment reduced by the time spent in custody in relation to other offences for which he was either not convicted or not proceeded against and also for time spent in administrative detention.

17.  In Badhon, the appellant had spent a total of 148 days in investigative or jail detention (as opposed to administrative detention)  between 2007 and 2014, for various offences in respect of which he was either not proceeded against or acquitted.  There are no details of how that figure was calculated or the extent to which the 148 days is made up of matters not proceeded with as opposed to matters for which he was acquitted.  I presume the learned Judge had a schedule to that effect. He had, additionally, spent 182 days in administrative detention.  The prosecution, on appeal in Badhon, accepted that any period of time spent in judicial detention was a legitimate factor to be considered by the sentencing tribunal and took a neutral stance as to whether the sentence before the court should be partially or wholly reduced by that period of judicial detention.  They did not accept that any part of the administrative detention should be deducted.  Mr Leung prays in aid that concession as to judicial detention.  He submits that just as administrative detention has been a factor which may reduce a sentence[9] in certain circumstances, so too, by extension, should judicial detention and upon similar principles.

18.  Having been provided with further time to make good his submissions, Mr Leung provided the Court with a number of further authorities.  Of those, HKSAR v Ho Kwok Ho[10] and HKSAR v Singh Jaspreet[11] relate to judicial detention.

19.  In Ho Kowk Ho, the defendant had been in custody for two separate sets of proceedings at the same time.  This was because his bail for the first set of proceedings had been revoked upon arrest for the second set of proceedings.  The first set of proceedings went to trial and resulted in a conviction.  Thereafter, the defendant was a serving prisoner until his conviction was quashed on appeal.  All this occurred prior to him being sentenced for the second set of proceedings.  The Court of Appeal reduced his sentence on the second set of proceedings by the number of days the defendant was serving his sentence on the first set of proceedings up to the point it was quashed on appeal.  That reduction did not include any time spent on remand before the conviction on the first set of proceedings.

20.  In Singh Jaspreet, the defendant had served a greater period on remand than the sentence passed upon him because the Prison Rules required him to serve his whole 28-day sentence.  The Court reduced the current sentence by the number of excess days served on remand.

21.  This Court has considered a number of other authorities[12] arising from the appellant’s list of authorities in respect of judicial detention but those relate to unique situations such as periods of time in custody overseas after absconding and errors by a court when determining concurrent and consecutive sentences when faced with a recent and separate sentence for other matters.  There is therefore no authority before me which directly assists.

22.  On the adjourned hearing, Mr Leung shifted his position somewhat.  He now seeks to advance his appeal upon the basis of a perceived injustice in the mind of the accused.  He submits that the error of the learned magistrate in STCC 2380/2018 was so gross and so obvious, that it was identified by Toh J on appeal without the need for any representation, which, he submits is supported by the subsequent inevitable acquittal upon appeal.  As a result, the appellant perceives himself to have been wholly unjustly proceeded against under STCC 2380/2018 and was found guilty in an improper manner.  The appellant therefore submits that the period of time he spent as a serving prisoner should be either wholly or partially deducted from his current sentence despite there being neither nexus nor proximity between the two sets of offending.

Respondent’s submissions

23.  Ms Yuen, on behalf of the Respondent submits quite simply, that this application does not fall within the ambit of s67A of the Criminal Procedure Ordinance, Cap 221 and, in any event by analogy, its preconditions relating to nexus and proximity are not satisfied as the offence for which the appellant seeks discount from his current sentence is wholly unrelated to the facts before the Court and is remote.  That being the case, and in answer to the appellant’s first argument, what unique circumstances exist which would render it unfair or unjust not to take that period into account.  The Respondent submits there are none.  Indeed, the learned magistrate had been generous in sentencing the appellant by treating him as a first time offender and even if he had known of the intervening proceedings for which the appellant seeks credit, it does not follow that he would necessarily have given him any credit for it as there was neither nexus nor proximity.

24.  As to the appellant’s current submission that he should be granted some deduction for his perceived sense of unfairness in the manner he was prosecuted and tried, Ms Yuen submits this argument has strayed far from the original appeal.  The Court should not entertain an argument based upon matters which are not properly before it as it has no transcript from either STCC 2380/2018 or STCC 302/2019 under which he was acquitted.  Indeed, the appellant places great reliance upon the decision of Toh J in HCMA 489/2018, when even Toh J did not have a transcript of proceedings before her.

25.  As a consequence of those submissions, the Court ordered a transcript of both STCC 2380/2018 and STCC 302/2019 in order to place the refined argument of the appellant in context.

Discussion

26.  A sentence of imprisonment imposed by a court is to be served by a convicted person subject to Rule 69 of the Prison Rules, Cap 234A, under which Rule 69(5)(a)  provides that the actual term to be served is a term as reduced by s67A of the Criminal Procedure Ordinance, Cap 221 (“the CPO”).  The computation of the length of imprisonment to be served by an offender is therefore subject to s67A, the relevant parts of which read:

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, but where the person was, in respect of the offence for which the sentence of imprisonment was imposed, subject to an earlier order made under—

(a)section 3 of the Probation of Offenders Ordinance (Cap. 298)[13];

(b)section 36 of the Magistrates Ordinance (Cap. 227)[14]; or

(c)section 109B of this Ordinance[15],

any such period of custody falling before the earlier order was made shall be disregarded for the purposes of this section.

(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. (Added 13 of 1995 s. 54)

27.  As to ss(1), any time served in custody prior to sentencing for an offence, where that detention is related to that offence, will be deducted by the Correctional Services Department (“CSD”)  when calculating the actual time to be served by a convicted prisoner.  This is commonly referred to as judicial detention.

28.  As to ss1A, any period of detention related to the offence for which an offender is sentenced and which was imposed by the Police, Customs and Excise, the ICAC or the Immigration Department immediately prior to a first appearance before the Court, will also be deducted by the CSD when calculating the actual period of imprisonment to be served.  This is commonly referred to as administrative detention[16].

29.  Neither the application of s67A(1)  or (1A)  require any consideration by the Court when sentencing.  It is a post-sentencing exercise carried out by CSD.  It must therefore be the case that the issue of any such deduction arising before a sentencing court must be as a result of an application for the exercise of a discretion from the court in the expectation by the defence that such a deduction would not be given by the CSD when calculating the sentence as it does not fall to be considered under s67A.

30.  It follows that what this court is now being asked to do is to exercise its discretion to reduce the sentence of the lower court by taking account of a period of custody which would not qualify under s67A for any deduction[17]. The appellant wishes the Court to take into account the period of 212 days (from 25 June 2018 to 22 January 2019[18])  during which the appellant was remanded in custody for a single wholly separate offence alleged to have been committed on 20 June 2018, albeit also one of taking employment, but for which he was ultimately acquitted after re-trial. The appellant seeks to have the whole 212 days discounted from his current sentence for an offence which was committed some 3.5 years later in January 2022.  The two offences are neither connected nor proximate.  The appellant accepts they are wholly separate matters.  He simply submits through Mr Leung that it would be unfair not to do so.

31.  A Court has a wide discretion when exercising its sentencing jurisdiction to act in the interest of justice to determine a just and appropriate sentence in individual cases.  It has been recognised that the Court has a discretion to give credit to an appellant who has spent time in custody which would not otherwise fall to be considered under s67A.  It is a discretion and not an automatic right and any exercise of such a discretion must be carried out judicially and upon the correct principles[19].  Those principles include inter alia consideration of all of the facts pertaining to this and any other relevant offence plus what is known about the offender.

32.  The appellant relies for this appeal predominantly upon the decision of Madam Justice D’Almada Remedios in HKSAR v Iqbal Zahid & Anor HCMA 44/2018 (“Badhon”).  In that case, the period of time the appellant Badhon had spent in judicial detention, for several unrelated matters for which he was either not proceeded against or acquitted, was deducted in its entirety on appeal from the sentence passed by the lower court.  The Court declined to give any discount for any administrative detention.  In respect of the judicial detention, the Court felt it would be unjust not to give a reduction in sentencing considering the particular circumstances of that appellant.  In Badhon, the appellant was a man of previous good character.  He has been detained for several offences over a considerable period of time between 2007 and 2014, amounting to 148 days in total.  This was Badhon’s first conviction and therefore no part of the 148 days could have previously been used to discount any other sentence.

33.  The respondent submits that the matter now before the Court does not stand on all fours with Badhon.  The appellant is not a first time offender and the situation before this Court is by no means unique as was said to be the case in Badhon.  Mr Leung submits it is unique for it is only in exceptional cases that an appellant is successful on appeal.  He has not sought to advance any other unique or exceptional issue but he has extended his application to the issue to ‘perceived injustice’ in the mind of the appellant.

34.  Ms Yuen is correct in submitting that the Court should be wary of seeking to enquire into proceedings which are not subject of appeal.  However, STCC 2380/2018 and STCC 302/2019 appear to be at the heart of Mr Leung’s argument and even though I have not been provided with any authority for the principle Mr Leung currently relies upon that a perceived injustice should warrant a deduction of sentence, I was prepared to consider the transcripts of both sets of proceedings.

STCC 2380/2018

Prosecution Case

35.  On 20 June 2018, a team of four officers were carrying out an operation to identify illegal workers in the vicinity of Man Kam To Road in Sheung Shui.  At 1450 hours PW1 and PW2 were inside a large container depot within which was a 6,000 square feet container yard referred to as Ho Yiu Container Depot (“Ho Yiu”).  PW1 entered Ho Yiu along with PW2 but they carried out observations from slightly different vantage points and arrested different people.  PW1 saw only the appellant, whom he observed to walk form the middle of the yard towards the left of the yard.  He was wearing working gloves and holding an electric drill.  For a period of 3 minutes, and from 10 meters away, PW1 observed him use the drill to take parts off a photocopier machine and also to replace parts on the machine.  Upon arrest and caution, PW1 made enquiries of the appellant to ascertain if he was working and the whereabouts of his employer but encountered a language barrier.  He was concerned only with the appellant and had no dealings with the other arrestees or the remainder of the team’s duties.  After the arrest, the appellant asked to retrieve his personal belongings from within a container, which he did.  The presence of his personal belongings, along with the belongings of other purported employees was evidence against the appellant.

36.  The defence case under cross-examination was as follows:

i.  The area in question was open to the public and easily accessible as it had no gate nor any security;

ii.  No one was seen to give the appellant any instructions;

iii.   PW1 did not find the employer or owner of the photocopier;

iv.   The appellant could have been there to steal;

v.  The appellant never held a drill;

vi.   The appellant never worked on any photocopier.

37.  In closing, Mr Chaudhry submitted inter alia

“This was obviously not an obvious place of work, although prosecution has provided PW3, I mean, saying that they’ve been here undertaken an employment at the same place but given the nature of the work that he has been given and the length of his employment with that place of work or the company, I mean, you know, the employer does not show clearly that this is a place where employees come in and work under a certain schedule or there was as he has said, I mean, there were bosses who would come in and give him instructions as to how to do work and what kind of works had been done. There was no indication whatsoever that there were any employers present to give any instructions to all three defendants to do any kind of work. Even if we take the prosecution’s case as its best value, the facts presented could not lead us to draw the undeniable inference that this was a case of illegal employment on a breach of condition of stay.”

38.  The transcript does not indicate that anything improper or unfair arose in STCC 2380/2018.  However, Toh J[20] was concerned at the lack of explanation for the drawing of an irresistible inference that the appellant was under employment, albeit she accepted that the learned magistrate was entitled to draw such an inference, she was nevertheless of the view on the papers before her that this was not the only inference which could be drawn. The Judge also noted that “The evidence in this case is not weak…”, which is why she ordered a re-trial.

STCC 302/2019

39.  The defence case in re-trial followed a slightly different emphasis.  More was made of the evidence of PW3 and the failure by PW1 and PW2 to note his presence.  Additionally, Mr Chaudhry introduced the new allegation that PW1 had tampered with the photographic evidence in so far as he had placed the appellant’s property into the container in order to implicate him.  It was the inconsistency between the evidence of PW1 and PW2 with that of PW3 which caused the learned magistrate the most concern and led him to find the case not proved.

Conclusion

40.  The entitlement to any reduction of sentence as a result of judicial detention arises strictly in accordance with s67A of the CPO, which mandates a reduction where an offender has been in judicial detention “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…”.  Recent authorities have, exceptionally and in the interest of justice, allowed a convicted person to seek a reduction of sentence under the exercise of the Court’s discretion. Those rare occasions when an appellant has been successful must not be taken to open the floodgates so as to suggest that the ambit of s67A(1)  has been judicially extended beyond its clear and obvious meaning.  There is no entitlement to a reduction of sentence where an appellant has spent time in judicial detention for matters wholly unrelated to the offence for which he is to be sentenced.  Indeed, in the normal course of events, a defendant should not expect any such deduction.  As was said by D’Almada Remedios J in Badhon[21], “there is not therefore a presumption that credit must be given”.  This Court would suggest that there is a presumption that credit will not be given unless there are special circumstances which would warrant it.  What is sought today is an exercise of discretion, exceptionally, in the interests of justice.  

41.  The appellant was observed wearing working gloves and holding an electric drill whilst dismantling a photocopier within a container yard where several photocopiers were present and being handled by PW3, who was in proper employment.  There was a bare denial of that by Mr Chaudhry on behalf of the appellant, which was rejected by PW1.  There was therefore no evidence before the Court as to why the appellant was present in Ho Yiu at that time.  Nor was there any evidence as to why he was wearing workmen’s gloves or drilling a photocopier.  The allegation as to the personal belongings of the appellant being in the container was also denied by PW1.

42.  There was a case to answer on both occasions. The evidence was not weak but it did require the drawing of an inference which ultimately could not be made good.  That does not mean that the appellant should never have been prosecuted not does it follow that he should not have been subject to a re-trial to which he acquiesced on appeal.  The learned magistrate did not make a gross and obvious error and it was not inevitable that the appellant would be acquitted upon re-trial.

43.  Subsequent to those proceedings the appellant deliberately undertook employment in breach of his condition of stay.  That was evidenced by his plea of guilty.  It cannot be said that he was ignorant of the rule of law in Hong Kong.  He has availed himself of it by every possible means.  That is his right, even as a guest in our country.  But has he suffered an injustice which requires that for these wholly separate proceedings, the judicial detention he served for other matters should now be taken into account.

44.  The 212 days of detention the appellant suffered was unfortunate, but in itself it was neither unjust nor unfair.  It was the consequence of our criminal justice system, which allows in limited circumstances for financial compensation for such detention.  The first 81 days were spent in what has been described as a wholly proper investigation and prosecution of a criminal offence for which the appellant was initially convicted.  He served 99 days of his sentence.  His appeal was dealt with promptly. No fault was found with any of the government agencies involved in his arrest; the investigation of the alleged crime or of the prosecuting authorities in proceeding against him.  The appellant brought suspicion upon himself through his presence at the scene and through his actions.  Having been previously convicted of the exact same offence, he would have been well aware of the precarious position he placed himself in when he was found as he was on 20 June 2018.  He was wearing workman’s gloves, in a container yard and observed to be using an electric drill upon obsolete photocopying machines and removing parts.  His personal belongings had been stored elsewhere in the yard.  He had volunteered that fact to PW1.  As was his right, he chose to say nothing upon arrest and caution and elected not to give evidence on his own behalf.  There was nothing before the investigating or prosecuting authorities to suggest that the proceedings should not be brought.  The prosecution case relied upon the observations of PW1 and PW2 as well as the drawing of inferences. He was properly prosecuted and found guilty by the learned magistrate upon the drawing of an irresistible inference that he was in employment.  He appealed that conviction and it was found to be both unsafe and unsatisfactory.  Not because there was a clear conflict in the evidence nor because the magistrate was found to be in error but because, without more, the learned appeal judge was concerned about a lack of explanation in the Statement of Findings as to the reason for drawing an irresistible inference that the appellant was in employment and that she considered it proper therefore to order a re-trial. Had the learned judge on appeal considered a significant error had been made, no doubt she would have quashed the conviction but instead, she ordered a re-trial after which he was acquitted.  A re-trial in which, as he was entitled, a different approach was taken by the defence.  It was on the basis of that evidence that the learned magistrate acquitted.

45.  The appellant availed himself of the full protection of the common law, as he has done throughout his interactions with the government of Hong Kong.  As such he was entitled to both its benefits and its burdens.  He availed himself of those benefits and burdens when he chose to return to Hong Kong illegally in January 2016, knowing he was in breach of a deportation order for life.  He is not a first time offender nor is he unaware of the legal justice system here in Hong Kong.  He was and is entitled to its protection.  His perception as to our system of justice is presumed to be a positive one given that he has availed himself of it at every turn at the expense of the Hong Kong taxpayer.

46.  It does not automatically follow from the various authorities on both administrative and judicial detention that when an acquitted defendant offends at some future date, he or she can pray in aid time spent in custody for that alleged previous and unrelated offending.  There is good reason for that.  It is unattractive and contrary to public policy, to suggest that criminals can bank periods of time in custody for matters which are either not proceeded with or which result in an acquittal, against future offending as if they had an open cheque book to re-offend without risk of serving a sentence.  Something more is clearly required if an appellant submits that it would be unjust not to allow such a deduction.  The hurdle is a high one.  In Badhon, it was the fact that he had a clear record and that he had been subjected to detention over several years for multiple unrelated offences, some of which were never prosecuted.  In HKSAR v Cheung Lai Sing, Dixon [2003] HKEC 1142, it was the fact that the defendant faced two sets of proceedings which could have been dealt with together and would therefore have attracted consideration of time spent in custody for both sets of proceedings.  The manner in which they were dealt with had an unforeseen consequence upon the defendant’s incarceration.  There are other examples of injustice where it was proper to do so but this is not one of them.  No such argument is available to the appellant here.

47.  This appeal is dismissed.  There will be no order as to costs.