CHAN HUNG v. THE COMMISSIONER OF CORRECTIONAL SERVICES

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 678 OF 2000

-----------------

-----------------

-----------------

JUDGMENT

-----------------

1. This application for judicial review concerns the intended date of release of the applicant from prison.

The point in issue

2. The point falls within a narrow compass. The applicant committed a serious robbery on 6 April 1995. He was arrested and appeared before a magistrate on 8 April 1995, when he was remanded in custody to await trial for his alleged involvement in the robbery.

3. On 1 May 1995, he appeared again in the magistrate's court, this time charged with an offence of entering Hong Kong unlawfully. He pleaded guilty, and for that offence he was sentenced on that day to a term of 15 months' imprisonment. Assuming remission for good behaviour, he would then have expected release from that term of imprisonment at about the end of February 1996.

4. On 9 November 1995, he appeared in the High Court for trial in relation to the robbery charge. On that day, he pleaded guilty. It was, according to the transcript I have, the second or the third day of the trial. Because there was outstanding the trial of the co-defendants upon the same indictment, sentenced was postponed to 27 November. On that day, the trial judge, Mr Justice Burrell, sentenced the applicant to a term of nine years' imprisonment. He then said this:

" In all the circumstances, I consider 9 years' imprisonment to be the appropriate sentence in this case. The defendant is already serving a 15 month sentence for entering Hong Kong illegally. In principle the sentence should be consecutive, however, in order to exercise such leniency as I can and also because of the principle of totality, I shall order that this sentence be served concurrently."

There was subsequently an appeal against sentence which did not succeed.

5. The point that arises can be stated shortly. For the purpose of determining the date of release of this applicant, what is the appropriate remand period to be counted as going in reduction of the sentence. Is it:

6. The Commissioner for Correctional Services decided in this case that it is the latter, the shorter period, and it is that decision that is challenged in these proceedings.

The answer : section 67A

7. Section 67A(1) of the Criminal Procedure Ordinance runs as follows :

" 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 for which those proceedings arose, but where the person was, in respect of the offence for which the sentence of imprisonment was imposed, subject to an earlier order made under -

any such period of custody falling before the earlier order was made shall be disregarded for the purposes of this section."

8. I have added the emphasis to the word "only", because the respondent says that that is the answer to this application : that from 1 May 1995, the applicant was not in custody by reason only of the order of 8 April when remanded in respect of the robbery offence, but was in custody by reason also of the sentence imposed for the immigration offence.

9. In my judgment, that cannot be gainsaid. The language of the section could not be more clear. Moreover, it seems to me obvious that a sentence starts from the date upon which it is passed. It is not deemed to start from an earlier date, nor does a judge have power to order it to begin on some earlier date. The very wording of section 67A confirms this, for the section does not deem the sentence to begin on the date of remand, but rather reduces the sentence passed.

10. I am fortified in this analysis by authority, in particular :

(1) R. v. Governor of Wandsworth Prison, ex parte Sorhaindo, Times Law Reports, 5 January 1999, a review of a decision arising from the application of section 67 of the Criminal Justice Act 1967 (UK) as inserted and amended by section 49(2) of the Police and Criminal Evidence Act 1984. This section, as inserted and amended, reads as follows :

It will be seen that the effect of that section is identical to section 67 A of the Criminal Procedure Ordinance. In that case, the Divisional Court of the Queen's Bench Division held that two months spent in custody pursuant to an earlier sentence, a period during which the applicant was also on remand for offences for which the second sentence was passed, did not count towards the reduction of sentence envisaged by section 67, even though the sentence for the earlier offence which was reversed on appeal. The reason for that conclusion lay in the unambiguous wording of the section. Lord Justice Simon Brown is reported as saying that :

" There was no need to distort the meaning of section 67(1A) for justice to be accomplished. The sentencing judge, no doubt assisted by counsel, should recognise the opportunity before him to remedy any possible grievances by adjusting the sentences for offences B accordingly."

(2) The Attorney General v. Wong Man Kei [1992] 2 HKC 52, a review by the Court of Appeal of an order of a trial judge by which the judge ordered the sentence to run from a date three months prior to the defendant's return to Hong Kong having jumped bail, a date, in other words, well prior to sentence. The Court of Appeal accepted that that was wrong in principle and not authorized by law.

Section 68, and backdating

11. I see no reference in that judgment (Wong Man Kei) to section 68 of the Criminal Procedure Ordinance, nor is it the section which was raised in the notice of application in this case, or in the skeleton agreement. It was raised for the first time today, and counsel for the respondent was taken, as one might imagine, by surprise. I think, however, that the point can be addressed without the assistance of such research as counsel for the respondent might undertake if there were an adjournment for that purpose.

12. Section 68 stipulates 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."

It is not a section which, in my judgment, authorizes backdating. Rather it presupposes that there can be no backdating. I say so because the notion that a sentence can be backdated was then so fundamentally contrary to principle, that a section which permitted not only forward-dating but backdating as well, would no doubt have addressed such a fundamental change in specific terms. If the section were to be read as allowing backdating, it would permit the type of problem referred to in R. v. Fan Ah Yuk [1961] HKLR 665, at 666 :

13. But in any event, in this case, no order to backdate was made under section 68. The order of the judge did not purport to backdate the sentence, whether under section 68 or otherwise. Where a judge passes a sentence and orders it to run concurrently to a sentence previously passed and which is being served, that simply means that as from the date of the passing of the sentence, it runs during the currency of the first sentence. In the normal course of events, a judge who intends to give effect to the totality principle by ordering sentences to run concurrently, or consecutively, or partly concurrently, or partly consecutively, will use those very time tested formulae; he will use the words, as the judge in this case did, "concurrent" or "consecutive". If a judge wishes to employ the power conferred by section 68, even as that section is intended, namely, to order a sentence to run from a future date, he will specify the date. There is no warrant for saying that, in this case, by his use of the word "concurrent", the judge was somehow seeking to order the sentence to start on 1 May 1995.

The Certificate of Sentence

14. I see the certificate of sentence issued in this case, and wish to say a word about it, for it has been the subject of some submission. Section 86 of the Criminal Procedure Ordinance provides as follows :

15. The certificate of sentence, in this case, states as follows :

" This is to certify that the undermentioned person was sentenced this day by The Honourable Mr. Justice Burrell to undergo the undermentioned punishment namely:--

16. Chan Hung

17. One notes that this certificate does not purport to suggest that the sentence should start from some date earlier than 27 November 1995. In so far as it gives the period of remand as running from 8 April 1995 to 27 November 1995, that is correct as far as it goes. But that does not mean that the applicant was, after 1 May 1995, in custody by a reason only of that remand. He clearly was not.

Correspondence

18. A question has been raised about what it is the judge intended. There is nothing on the face of the sentence passed, as recorded in the certificate of sentence or in the transcript of the proceedings, to cast doubt upon what the judge intended. The order was in normal form, and it seems to me that it means what it says. The question is said to arise, not only by reason of the judge's sentence that the sentence should run concurrently ---- I have dealt with that, and I see nothing in the point ---- but also by reason of correspondence between the applicant's solicitors and the judge's clerk.

19. On 7 December 1995, those then acting for the applicant wrote to the judge's clerk to :

20. There is a reply, dated 8 December 1995, from the learned judge's clerk, in which the clerk has, in part, this to say :

21. Now this reply cannot, in my view, be interpreted as saying that the judge intended to backdate the sentence. Had he intended to backdate the sentence (though, as I say, not having had power to do so), then the letter would have referred to a sentence beginning not on 8 April 1995, but on 1 May 1995. Rather, it appears that the clerk to the judge is referring to the time that is assumed to run in reduction of sentence by reason of time spent in custody, awaiting sentence. If that is a correct analysis of what was there being said, then to the extent that I have explained, there is an error, for not the entire period was available for reduction. Mr McLanachan, on behalf of the applicant, says that in that case, the judge proceeded on a misunderstanding, and had he understood the true position, namely, had the terms of section 67A been drawn to his attention and had he appreciated that the applicant would lose the benefit of the period in custody from 1 May, he would have passed a different sentence. Whether or not there is anything in this suggestion, or in the assumptions upon which it is based, it is not a point that goes to the validity of the decision of the Commissioner for Correctional Services in the calculation he has made, and in his application of section 67A.

22. In 1996, when the applicant raised his concern with the Commissioner for Correctional Services, the Commissioner wrote to the court passing on his concern. But the Judiciary Administrator wrote back to the Commissioner, saying that :

"The court is not in a position to comment on the computation of sentence which is the responsibility of the Correctional Services Department. However, the court had already clarified that the sentence of nine years in HCC 180/95 is to run concurrently with the sentence of 15 months in NKC 6997/95."

This perhaps does not quite answer the applicant's concern but, again, it carries this application no further.

Further suggestions

23. It is then argued by Mr McLanachan that had the applicant but realised in April or May 1995, that part of the period in custody, commenced in May 1995 for the immigration offence, would not go in reduction of a concurrent sentence for the robbery offence imposed later that year, he would have asked for the sentence for that immigration offence to be postponed and dealt with at the same time as the sentence for the robbery offence. Whether in practical terms such a course would have been available to him, I cannot be sure, but assuming that it would, it is not a course that he took, and he was at the time acting with the benefit of legal representation; and the point is, in any event, not one which undermines the legality or correctness of the Commissioner's calculation.

24. It is said in the written argument and in the notice of application on behalf of the applicant, that the decision of the Commissioner is Wednesbury unreasonable. I have some difficulty with that contention. The Commissioner has a duty to give effect to the terms of the statute. He has either correctly interpreted and applied it, or he has not. No question of the exercise of discretion arises, and I do not see how the issue of Wednesbury unreasonableness arises in this case.

Conclusion

25. There is, in my judgment, no basis for saying that the Commissioner has misapplied the terms of section 67A, or misread the effect of the sentence as it is recorded and certified, or has otherwise erred in law in his approach to the question of the proper date for this applicant's release in respect of the robbery sentence. Accordingly, this application for judicial review must be dismissed.

Addendum

26. In so far as it is suggested that the judge passed a sentence which in its terms or effect does not reflect what he intended in practical terms; or that he expressed himself in a way which did not give effect to that which he intended, it is still open to those acting for the applicant to raise the matter afresh with the sentencing court to clarify, once and for all, whether there was any intention to backdate the sentence or not; or any misunderstanding on the part of the trial judge about what portion of the applicant's time in custody, after 1 May, would go in reduction of sentence. If that was the question which the solicitors acting for the applicant in 1995 intended to put, then either it was not put as clearly as it might have been, or the question was not answered in terms. If the matter is raised afresh, and the applicant has made assumptions which are inaccurate, then no doubt that will be the end of the matter. If on the other hand, there arrives an answer which is favourable to the applicant, then those acting for the applicant will no doubt take such steps on his behalf, either by an approach to the executive or by such other avenue as is available in law, to address the grievance.

Costs

27. On the question of the costs, in light of the special circumstances urged upon me by Mr McLanachan, and in view of the relatively neutral position in relation to this question, in this particular case only, taken by the respondent, I have decided that there shall be no order as to costs.