HKSAR v. LEE KWAN YEE AND ANOTHER

CACC 39/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.39 OF 2003

(ON APPEAL FROM HCCC 397 OF 2001 AND HCCC 41 OF 2002)

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J U D G M E N T

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Hon Hartmann J (giving the judgment of the Court) :

1. On 20 January 2003, after a trial in the Court of First Instance before Gall J and a jury, the first applicant, Lee Kwan Yee, was convicted of manslaughter and two counts of wounding with intent. He was sentenced to seven and a half years' imprisonment for the manslaughter offence and four and a half years' imprisonment for the two offences of wounding with intent. It was ordered that all the sentences should run concurrently. The second applicant, Tai Luk Kin, a co-accused in the same trial, was convicted of two counts of wounding with intent and sentenced to four and a half years in respect of both offences, the sentences to be served concurrently. Both applicants now seek leave to appeal out of time against their sentences.

2. They do so upon a single, shared ground; namely, that, when submissions in mitigation were made on their behalf, the court was not informed that both applicants had been arrested in the Mainland and held by the authorities there for a period of just under six weeks before being surrendered to the Hong Kong Police. The applicants contend that they should have been given credit for that period of detention, a total of 44 days.

3. The applicants seek leave to appeal out of time on the basis that they attempted unsuccessfully to obtain legal aid, that delay being compounded by time taken to consider whether they should seek financial assistance from family or friends. They appear today unrepresented.

4. For the respondent, Mr Jackson Poon concedes that the sentencing judge was not appraised of the period of time that the applicants had spent in custody in the Mainland. However, he contends that, as the applicants were only detained in the Mainland because they had fled Hong Kong to avoid arrest and were in any event detained for a relatively short period of time, the period of their detention should not be taken into account so as to reduce the sentences imposed upon them.

5. It is now well settled that, in assessing sentence, a judge may properly take into account any period of time that a defendant has spent in custody outside of Hong Kong. It is therefore a matter of discretion whether it should be taken into account or not, that discretion to be exercised in light of the relevant circumstances.

6. By way of guidance as to the exercise of that discretion, in R v. Law Yiu Wo (1994) 2 HKCLR 204, this court held that time spent in custody in a foreign jurisdiction was not generally a matter to be taken into account unless, in the discretion of the judge, it was felt that justice demanded that account should be taken of it. There is not therefore a presumption that ordinarily credit must be given.

7. In a later judgment, that of HKSAR v. Lam Pak Lok [1997] 3 HKC 650, this court held, however, that flight from Hong Kong to avoid arrest did not automatically prevent a defendant from claiming credit for time spent in custody abroad. It was simply one of the factors to be taken into account in the exercise of the court's discretion.

8. In this application therefore, the question to be determined is whether in all the circumstances, justice demands that the applicants' period of detention in the Mainland should now be taken into account and due credit given for it.

9. We are not of the view that any credit should be given. While it does not debar them from claiming credit for their time spent in detention outside of this jurisdiction, it is a fact that the applicants did flee Hong Kong to avoid arrest, knowing that they faced charges here of the gravest kind. They were therefore very largely the authors of their own misfortune. The time spent in detention in the Mainland was not unduly long. Nor can we say that, in the final analysis and having regard to the gravity of their offences, the sentences imposed upon the applicants were in any way excessive.

10. Accordingly, both applications for leave to appeal out of time are dismissed.