HKSAR v. WONG TO LEUNG

CACC 204/2001
CAAR 9/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 204 of 2001 &
APPLICATION FOR REVIEW NO. 9 OF 2001

(ON APPEAL FROM DCCC 390 OF 2001)

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CACC 204/2001

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. On 30 May 2001, Wong To-leung (the prisoner) pleaded guilty before Judge Christie to a charge of burglary. He was then sentenced to two years' imprisonment which the judge directed should "commence 2 years and 6 months after the commencement of the terms of imprisonment imposed on 23 October 1998 in DCCC 972/98". The judge continued by saying: "I note, for the avoidance of doubt, that this means that 6 months of the sentence imposed today is consecutive to sentences A and B of that case".

2. Within a few days of each other, the prisoner had applied for leave to appeal against the judge's order and the Secretary for Justice had applied under section 81A of the Criminal Procedure Ordinance, Cap. 221, for a review of sentence, the former in lay language and the latter in the legal terms of the review application before us. However, the effect of both applications was exactly the same and both are equally correct. Furthermore, for exactly the same reason advanced in each application, these applications must succeed.

3. The issue can be briefly described. On 23 October 1998, the prisoner was sentenced to a total of four years' imprisonment in DCCC 972/1998 for offences of burglary and unlawfully remaining in Hong Kong without authority. Those offences were committed on or about 29 April 1997. The offence with which we are presently concerned occurred on 16 January 1998. However, the prisoner's involvement in this offence was not appreciated until earlier this year when his fingerprint was matched to the burglary. The prisoner was formally arrested for the offence a few days or weeks before he was due to be released after taking into account remission he had earned for good conduct.

4. The judge, in passing sentence on the prisoner, considered that if the present burglary had been known about when the four-year sentence was passed in 1998, the prisoner would have received a total of four and a half years' imprisonment. No one quarrels with the judge's assessment. However, he went on to say:

"A technical point may arise given that the sentence of 4 years has not yet expired and he has already been released by the Commissioner. I therefore have had regard to the wording of section 68, Cap. 221 which deals with so-called concurrent and consecutive sentences and, in effect, provides that a sentence may be concurrent if the person is already 'undergoing' sentences or has been 'sentenced to undergo' sentences. In such cases the court may direct that the imprisonment shall commence 'at any time during ... the (previous) terms of imprisonment ...' I have tried to follow the wording of S. 68 in formulating this sentence in the hope of avoiding confusion."

5. Section 68 of the Criminal Procedure Ordinance provides as follows:

"Where the court sentences any person to undergo a term of imprisonment for an offence, and such person is already undergoing, or is at the same time of the court sentenced to undergo, imprisonment for another offence, it shall be lawful for the court to direct that such imprisonment shall commence at any time during or at the expiration of the term of imprisonment which such person is then undergoing or has been so previously sentenced to undergo, as aforesaid."

6. The judge, in the terms we have already cited, then went on to pass the two-year sentence which he purported to impose pursuant to section 68 of the Criminal Procedure Ordinance, by directing that the sentence should not commence until two and a half years of the previously imposed sentence had been served.

7. There are at least two difficulties with the order made by the judge.

8. The first is that it does not give effect to the judge's manifest intention which was to add only six months to the earlier sentence of four years. This course would have resulted in the prisoner's release in July 2001, assuming full remission. On the contrary, a sentence of two years starting on or about 29 March 2001 would effect the prisoner's release on some date well into 2002.

9. Secondly, the order contravened the terms of section 68 in that on the date of sentence, which was 30 May 2001, the prisoner was not "undergoing" a term of imprisonment because he was only in custody as a result of being on remand for the burglary with which we are presently concerned.

10. If we did not interfere, the result would be, contrary to the judge's intention, that the prisoner would now have to serve the full term of two years' imprisonment commencing on the day it was imposed (30 May 2001) subject to remission which is largely in the discretion of the Correctional Services.

11. Small wonder then, that when the prisoner found out that he was unlikely to be released before mid-2002, he immediately applied for leave to appeal, and that the Secretary for Justice immediately sought a review to bring the matter to our attention.

12. The suggestion is also made that section 68 confers no power to backdate, but it is in the event unnecessary for us to go into that issue.

13. It is apparent that the prisoner should not serve any longer than he would have done assuming that he had been sentenced to four and a half years' imprisonment in October 1998. It has been worked out that the prisoner's release date, assuming he receives full remission, would on that basis have been on 29 July 2001. Taking this basis, having regard to the highly unusual circumstances we have outlined, we shall impose such a sentence as will enable the prisoner's release from his present sentence on or about that date.

14. Accordingly, we shall allow the application for leave to appeal and treat the hearing as the appeal.

15. The prisoner's sentence of two years, which in normal circumstances would have been richly deserved, will be quashed and in its place we shall impose a sentence of six months' imprisonment in order to give effect to the judge's perfectly proper intention that the prisoner should only serve a further six months for this offence.

16. The course we have taken effectively renders the Secretary for Justice's application for review otiose, but we nevertheless indicate that this application also succeeds for the same reasons as the prisoner's appeal.