HKSAR v. HO KWOK HO

CACC 124/2005 &
CACC 504/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NOS. 124 AND 504 of 2005

(ON APPEAL FROM HCCC NO. 148 of 2004)

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CACC 124/2005

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CACC 504/2005

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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.  Both appellants seek leave out of time to appeal against sentence.  The same ground applies to them both.  In effect, this alleged that a substantial part of the time they have spent in custody while on remand cannot be utilized towards their present sentences because this related to conviction and sentence on unconnected charges which have subsequently been quashed on appeal.

2.  The respondent has very properly accepted that there is merit to these applications and we shall, therefore, deal with them briefly, giving leave and treating the hearing as the appeals.

CACC 124/2005

3.  On 23 February 2005, the 1^st appellant, Ho Kwok-ho, pleaded guilty before Lunn J to conspiracy to rob, contrary to sections 159A and 159C of the Crimes Ordinance, Cap. 200 and section 10(1) and (2) of the Theft Ordinance, Cap. 210.

4.  The judge, with reference to the guidelines in R v Mo Kwong-sang [1981] HKLR 610, adopted a starting point of 6½ years’ imprisonment and reduced this to 4 years and 4 months’ imprisonment to reflect the 1^st appellant’s timely plea.

CACC 504/2005

5.  A number of other defendants were involved in the conspiracy to rob.  Two of them pleaded not guilty but were convicted on 7 October 2005 by a jury, following a trial before Beeson J.  The 2^nd appellant, Yip Kenny, was one of the two convicted after trial.  The judge, having been made aware of the sentence imposed on the 1^st appellant by Lunn J, imposed a sentence of 4½ years’ imprisonment because of the 2^nd appellant’s much smaller role.

The appeals

6.  The facts, for the purposes of these applications, have no relevance.  No complaint is made about the sentences imposed as such.  It was submitted that having regard to the provisions of section 67A of the Criminal Procedure Ordinance, Cap. 221, we should now reduce the sentence imposed on each appellant for the conspiracy so that the length of time each of them has spent in custody, in relation to their convictions which were later quashed on appeal, can be taken into account towards their present sentences.

7.  Section 67A of the Criminal Procedure Ordinance provides:

          “(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, …”

8.  In the 1^st appellant’s case, he was arrested for the conspiracy on 9 January 2004 and was remanded in custody until 23 February 2005 when he was sentenced.  Prior to 9 January 2004, the 1^st appellant had been on bail for other offences but on 14 January 2004 his bail for those offences was revoked.  He was convicted on 31 March 2004 after trial in the Magistrates’ Court on these charges.  He appealed and, on 21 December 2004, Deputy Judge D Pang quashed these convictions.  As a result, it was submitted that the 1^st appellant has lost the benefit of having part of the period he has spent in custody being treated as reducing the sentence imposed for the present conspiracy.

9.  We are grateful to Ms Anna Lai, on behalf of the respondent, for her analysis of the 1^st appellant’s position based upon her correspondence with the Correctional Services Department.  In short, the 265-day period between 31 March 2004 to 20 December 2004 has been utilized for the sentences quashed on appeal.  The whole of the time spent in custody by the 1^st appellant prior to sentence in the present matter, from 9 January 2004 until 22 February 2005, amounted to 411 days.  Therefore, on this basis, by subtracting 265 days from 411 days, the accountable time for the 1^st appellant’s remand is a total of 146 days, leaving his earliest date of discharge on 19 August 2007.  However, if the period between 31  March 2004 and 20 December 2004 was also made accountable towards the 1^st appellant’s sentence, his release date would advance to 27 November 2006.

10.  A similar picture has emerged for the 2^nd appellant where, again, 265 days (from 31 March 2004 to 20 December 2004) has been used towards extinguishing the sentence imposed for the quashed convictions.  In his case, he had spent 637 days on remand of which 265 would not be counted, subject to any order made in these proceedings.  On that computation, the 2^nd appellant’s earliest release date would be 30  September 2007.  However, if the 265-day period was made accountable towards the present sentence, his earliest release date would advance to 8 January 2007.

11.  The situation now before us has occurred before (see: HKSAR v Cheung Lai-sing, Dickson CACC 137/2003) and we have no difficulty in deciding that these appellants should be given the benefit of the time they have spent in custody in respect of the convictions quashed on appeal which, but for these proceedings, would not be taken into account against their sentences for conspiracy.

Conclusion

12.  Accordingly, we shall reduce the 1^st appellant’s sentence in such a way as to give effect to all the time he has spent in custody including the period between 31 March 2004 and 20 December 2004.  His sentence is reduced to 3 years, 2 months and 28 days in order to ensure that his earliest release date, subject to his industry and good conduct, will be 27 November 2006.

13.  In the 2^nd appellant’s case, we shall similarly reduce his sentence to give effect to all the time he has spent in custody, including the period between 31 March 2004 and 20 December 2004.  In his case, his sentence is reduced to 3 years, 4 months and 27 days in order to ensure that his earliest release date, subject to his industry and good conduct, will be 8 January 2007.

14.  To this extent, both appeals succeed.