HKSAR v. FUNG KAR HING

[English Translation – 英譯本]

CACC 368/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 368 OF 2005

(ON APPEAL FROM DCCC NO. 210 OF 2005)

______________________

______________________

REASONS FOR JUDGMENT

______________________

Hon Tang JA (giving judgment of the Court):

1. On 23 August 2005, the applicant was sentenced to 16 months’ imprisonment on count (6) and 20 months’ imprisonment on count (12), with the two sentences to run concurrently.

2. However, as the applicant had in February and May 2004 been sentenced to a total of 43 months in respect of two other cases, the trial judge in passing sentence said:

“… And having taken into account all the circumstances, especially the fact that the defendant is now serving a 43-month sentence, the most appropriate arrangement in my view would be to order that only 6 months out of this 20-month sentence is to run consecutively to the sentence he is now serving.  Put simply, therefore, D2 has to serve another 6 months for the present offences to which he has pleaded guilty.”

3. And as the Court of Appeal in HKSAR v Roseanna Gordon & Another CACC 45/2001 said:

“… After the court has passed sentence on a person, the Correctional Services Department will immediately work out the actual date of discharge of that person, by reducing that sentence by one-third.  If subsequently a prisoner causes trouble while in the custody of the Correctional Services Department, the Commissioner of Correctional Services will exercise his discretion to restore the sentence remitted.”

4. Using this method of computation, as at 23 August 2005, the term that remains to be served as regards the 43 months’ imprisonment previously imposed will come to an end on 31 October 2005.

5. In HKSAR v Chow Kwok Keung CACC 379/2005, we pointed out in our judgment that the common law does not allow the court to order a sentence to begin on some earlier date.  This point was also explained in Chan Hung v The Commissioner of Correctional Services [2000] 3 HKC 767, with the result that only about 2 months out of the 14-month concurrent sentence could be served concurrently.  Hence, the applicant had to serve the remaining 12 months.

6.  Applying this principle, the sentence to be served by the applicant is actually longer than that decided by the trial judge.

7. In line with our decision in Chow Kwok Keung, we should set aside the order made by the trial judge and substitute for it a sentence that will allow the applicant to be immediately discharged, in order to give effect to the intention of the trial judge.  The applicant has, as of today, already served a sentence longer than that intended by the trial judge.  We therefore rule that the applicant should be discharged immediately.

8. We allow the applicant’s application for leave to appeal against sentence out of time.  Treating the application as the appeal proper, we allow the appeal, set aside the trial judge’s order and substitute for it a sentence that will allow immediate discharge, namely a sentence of 219 days from the sentencing date, to be served consecutively to the sentences imposed in DCCC 1030/2003 and DCCC 28/2004.

9. As can be seen from the above case, similar problems have occurred before.  In the present case, the applicant’s sentence should have come to an end on 2 March, but in fact he was not discharged until today.  His application for an earlier hearing date was made back in late December last year, but regrettably the appeal can only be heard today.  To avoid similar mishaps, we suggest that whenever the Correctional Services Department becomes aware of the possibility of a similar problem occurring, they should at once inform the defendant so that he can immediately make an application for appeal.  We also suggest that, at the sentencing stage, the prosecution should inform the court of any sentences already imposed on the defendant, and whether the cases are still on appeal or whether the relevant judgments are final.   This will assist the trial judge in making an informed decision.

10. This notwithstanding, similar problems may well arise again in future.  If they do arise, the court should arrange for a hearing as soon as possible, so that prisoners are not kept in custody when their sentences should have come to an end.