HKSAR v. IQBAL, ZAHID AND ANOTHER

HCMA 44/2018

[2018] HKCFI 821

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 44 OF 2018

(ON APPEAL FROM STCC 3282 OF 2017)

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J U D G M E N T

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1.  At the trial before the magistrate[1] the 1^st and 2^nd appellants were tried together with another defendant. The appellants were the first and third defendants (D1 and D3) respectively. The other defendant was the second defendant (D2).

2.  The three defendants were each convicted after trial by the magistrate of an offence of taking employment while being a person in respect of whom a removal order is in force, contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115.  They were sentenced to 22 months and 2 weeks’ imprisonment. 

3.  The 1^st appellant appeals against his conviction on charge 1.  The 2^nd appellant appeals against his sentence on charge 3.

4.  I turn first to deal with the 1^st appellant’s appeal against his conviction.

The Prosecution case

5.  The prosecution case is set out succinctly in the magistrate’s statement of findings which I shall adopt and set out below. 

“4. Prosecution case is that SPC53501 (“PW1”) was observing at the 1st Floor, Car Park, Kingsford Industrial Building.  PW1 was observing Lam Fook Street area.  He saw a truck, registration number SY6661. 

5. Inside the truck compartment, there was a South Asian male wearing green vest.  This South Asian male was moving foam boxes inside the truck to an opening on the side of the vehicle.  At the same time, there were two other South Asian males, one wearing a blue T-shirt and the other a red vest.  The two South Asian was standing outside the truck.  They were moving the foam boxes handled by the South Asian male in green vest.  They placed the foam boxes on top of the board near the ground on the vehicle, stacking up the foam boxes one-by-one. 

6. PW1 observed the three South Asian males doing the same action for five minutes.  He then informed his colleagues.  PC 5523 (“PW2”), PC 8685 (“PW3”) and PC 22649 (“PW4”) then approached and intercepted defendants.  PW1 saw PW2 intercepted the person wearing the blue T-shirt, who was later identified as 1^st defendant.  PW1 saw PW3 intercepted the male in green vest on the truck.  The male in green vest was later identified as the 2^nd defendant.  2^nd defendant’s recognizance form is found on the truck.  PW1 saw PW4 intercepted the person in rest vest who was later identified as the 3^rd defendant.  The 3^rd defendant later led PW4 back to the industrial centre to receive 3^rd defendant’s property.

7. Prosecution relied on the PW1 – PW4’s evidence.”

Defence case

6.  I set out below the 1^st appellant’s defence before the magistrate.  This is contained in paragraphs 8-10 of the statement of findings.  It is repeated. 

“8. 1^st defendant gave evidence. He said he went to Kowloon Bay at 5.30 in the afternoon, intending to go to the immigration office. However, after he arrived, another person told him the office is closed. 1st defendant then decided to go back. Before he got to the bus, 1st defendant saw a shop selling beer for $4. He then bought a beer. Afterwards, 1st defendant went to the garden and had that beer. After the beer, he fell asleep.

9. 1^st defendant then woke up at 2 a.m. He was woken up by a Chinese noise which is not far from him. Then a person, who claimed to be a police, approached him and woke him up. The police told him to stand up and grabbed his arm. The police then took 1^st defendant out of the park and to a car. After checking his identity, PW2 asked the 1st defendant to stand towards the truck. PW2 then accused him of working there and handcuffed the 1st defendant.

10. All along, the 1st defendant did not work.  Police was angry because somebody pushed the officer and ran away.”

Grounds of appeal against conviction – 1^st appellant

Ground 1 – credibility of PW1

7.  At the hearing the 1^st appellant orally repeated his defence put forward at his trial which was that at the material time he was sleeping in a garden and was falsely accused by the police officers of working. Essentially this ground was that the magistrate wrongly accepted the evidence of PW1 (the observing officer). 

Ground 2 – no independent evidence to support PW1’s evidence

8.  In addition, the 1^st appellant submitted the following in his home made written grounds of appeal.  He contended there was no independent evidence to support PW1’s evidence that he was working.  There was no CCTV or photographic evidence taken, an employer or the truck driver were not called to give evidence to say he was employed.  The boxes of vegetables were not checked to see if his fingerprints were on them or not.

Discussion

9.  I turn first to ground 1.  The magistrate carefully assessed and evaluated the evidence which had been given by the prosecution and the defence.  The magistrate gave reasons why he accepted PW1’s evidence and rejected the 1^st appellant’s evidence.  I find no justification for going behind his findings on the credibility and reliability of PW1.

10.  Turning now to ground 2.  The 1^st appellant contends that there is no independent evidence to support PW1’s evidence.  The point of supporting evidence was raised at the trial and considered by the magistrate. In his statement of findings[2] the magistrate stated the following:

“(ii) Defence also suggested that PW1 could have taken picture and PW1 did not seize the foam box as forensic evidence. I agree that a picture might help prosecution. However, without picture and forensic evidence, I need to consider carefully the evidence of PW1. I have in mind that PW1 was the sole witness who observed the incident. If, after considering all the other evidence, his evidence is capable of belief, I can rely on his evidence without the picture and forensic evidence.”

11.  The magistrate was correct to state that although other evidence may have assisted in proving the prosecution case he was and is entitled to rely on the evidence of PW1 without this supporting evidence.  The magistrate was fully aware that PW1 was the sole witness and the prosecution case rested entirely upon his observation.  The magistrate carefully assessed PW1’s credibility and was entitled to find him to be a reliable witness. 

12.  There are no merits in the above grounds of appeal.  I am satisfied that the conviction of the 1^st appellant was neither unsafe or unsatisfactory.  The appeal against conviction is dismissed. 

The 2^nd appellant’s application for extension of time for giving notice of appeal against conviction.

13.  On the first day of the hearing of the appeal in the 2^nd appellant’s oral submissions he claimed he was not working.  It was apparent that that he was intending to appeal against his conviction.  I informed him that he had only filed a notice to appeal against sentence.  Thereafter he applied by Form 103 for an extension of time for giving his notice of appeal against conviction.  Having considered his application I found there to be no reasonable grounds shown by the 2^nd appellant.  I refused his application.

Appeal against sentence – 2^nd appellant

14.  The mitigation advanced before the magistrate was very brief.  It was submitted that the 2^nd appellant was 38 years old and had completed secondary school education.  He had a clear record. 

15.  In sentencing the 2^nd appellant the magistrate considered the mitigation.  He correctly applied the guideline case of HKSAR v Usman Butt & Ors [2011] 1 HKC 12 and imposed a sentence of 22 months and 2 weeks’ imprisonment.  He saw no reason to reduce the sentence from the relevant starting point.

Grounds of appeal against sentence - 2^nd appellant

16.  There is no complaint by the appellant about the starting point of 22 months 2 weeks’ imprisonment that was imposed by the magistrate. 

17.  The 2^nd appellant limits his appeal to have his term of imprisonment reduced by the time spent in custody in relation to other offences which he was eventually not convicted of or for time spent in administrative detention. 

18.  The hearing was adjourned in order for Mr Daryanani, Senior Public Prosecutor for the Respondent, to ascertain the total period of time spent by the 2^nd appellant in the custody of an investigative agency and/or jail custody pending trial for suspected offences which the 2^nd appellant was not convicted of. 

19.  At the adjourned hearing Mr Daryanani informed the court that the appellant had spent a total of 148 days in investigative or jail custody for various alleged offences from 2007 up to 2014.   He was ultimately not convicted of any offences as he was either acquitted or released with no charge laid as there was insufficient evidence. 

20.  Up until 9 May 2008, the appellant had spent a period of 182 days in administrative detention.

21.  Mr Daryanani accepts in principle time spent by an offender in custody of an investigative agency and/or jail custody for suspected offences which he was ultimately not convicted of is a legitimate factor that can be considered by the court in the reduction of an offender’s sentence.  He takes a neutral attitude if the period should be partly or completely taken into account in the reduction of the 2^nd appellant’s present sentence of 22 months 2 weeks.  He however submits that no part of the sentence should be reduced on account of the period of administrative detention. 

Discussion

22.  The issue is whether in sentencing the 2^nd appellant this court should exercise its discretion to take into account the periods of administrative detention or judicial detention and reduce his present term of imprisonment. 

23.  I shall refer to the above mentioned 148 days as “judicial detention” and the 182 days above as “administrative detention.”

24.  Usually the sentence of imprisonment that is imposed by a court is to be served by an offender subject to the remission of sentence pursuant to Rule 69 of the Prison Rules, Cap.234A.  As noted in Rule 69(5)(a) the actual term means the term of imprisonment as reduced by section 67A of the Criminal Procedure Ordinance Cap 221 (CPO).

25.  Section 67A is concerned with the computation of sentences of imprisonment.  Section 67A concerns judicial detention and section 67A(1A) relates to administrative detention.  If a defendant has been sentenced to imprisonment the court will impose the appropriate sentence and then leave it to the prison authority to reduce the sentence to reflect an earlier detention provided they fall within the ambit of section 67A.

26.  In the present case the appellant’s periods of administrative detention and judicial detention will not be automatically reduced from the sentence as they are not covered by section 67A of CPO.  The appellant’s time spent in administrative detention was prior to 9 May 2008.  As there is no connection between the administrative detention and the offence committed no deduction can be made under section 67A(1A)(b) see HKSAR v Eftakhar [2015] 5 HKC 427. 

27.  Furthermore, pursuant to section 67A the time spent by the 2^nd appellant’s judicial detention which he was ultimately not convicted of an offence will not be automatically reduced from the present sentence as it was not connected or related to the sentence passed for this present offence. 

28.  In mitigation before the magistrate the defence counsel did not seek to have the sentence of imprisonment reduced by the period spent in administrative detention or judicial detention.  The magistrate was therefore not appraised of the period of time that the appellant had spent in judicial detention. 

29.  As the appellant has a clear record, it is clear from the sentence imposed that the magistrate did not take into account any period of administrative detention even though it was revealed in paragraph 4 of the brief facts. 

30.  Given the preconditions that need to be satisfied there is no basis to take into account the periods of administrative or judicial detention under section 67A or 67A(1A).  The question then is whether I should exercise my discretion to take into account the period of administrative or judicial detention to reduce the term of imprisonment imposed. 

31.  It is well settled that a court has a discretion to give credit to time spent by a defendant in custody which would not otherwise be regarded or reduced under the provisions of section 67A.  It is however a discretion and not automatic.  See HKSAR v Khan Aftab HCMA 34/2015 unreported, HKSAR v Bogoda HCMA 663/210, HKSAR v Lee Kwan Yee and Anor [2004] 1 HKC 462, Eftakhar (above), HKSAR v Cheung Lai Sing, Dickson, [2003] HKEC 1142 and HKSAR v Ho Kwok Ho & Anor [2006] 4 HKLRD 365.

32.  As to the administrative detention I see no good reason in taking it into account for the purpose of reducing the sentence he is now appealing against.  I decline to take it into account. 

33.  As to the 2^nd appellant’s time in judicial detention it is clear he has been in judicial detention for offences he was suspected of committing.  He was not convicted of those offences.  His remand in custody for these periods were lawful. 

34.  Given that the 2^nd appellant was not convicted of any of the alleged criminal offences, the period of time spent by the 2^nd appellant in the custody of the investigative agency and/or jail custody would not be recorded in the criminal record which simply shows he is of clear record.

35.  As this is the 2^nd appellant’s first conviction, the period of time spent by the 2^nd appellant in custody of an investigative agency and/or jail custody for suspected offences which he was ultimately not convicted of could not have been considered to reduce his sentence in a previous offence.

36.  There is no entitlement that the 2^nd appellant receive a reduction of sentence due to the 148 days he spent in judicial detention.  There is not therefore a presumption that credit must be given.  It is a court’s discretion. 

37.  The issue of the court’s sentencing discretion was addressed in HKSAR v Cheung Lai Sing, Dickson [2003] HKEC 1142.  In that case the court was concerned with two related sets of proceedings against the applicant which resulted in time previously served not being taken into account which would have been if the two sets of the proceedings had been dealt with together.  The court observed that if they had been dealt with together the effect of section 67A would have been entirely different.  The court intervened and ordered a sentence to address what it described as an obvious injustice and explained[3]:

“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.’”

38.  It would in my view given the very unique circumstances of the facts of this case be unjust to the 2^nd appellant if I were to shut my eyes to the “extra time” of 148 days in judicial detention.  This effective ‘loss’ of time suffered by the appellant was because he was in judicial detention and then released without conviction.  The time spent in judicial detention was not for a short period. 

39.  That said I am not saying that those detained for long periods should be entitled to a more favourable consideration by the court however after careful consideration and in the interests of justice the loss of time in judicial detention in my view merit the exercise of my discretion to take that into account so as to reduce the sentence.  

Conclusion

40.  In all the circumstances of this case, I consider justice demands that the appeal be allowed.  The sentence of 22 months and 2 weeks’ imprisonment be reduced by a total of 148 days.