HKSAR v. CHU KIN YUEN, BARTHOLOMEN

CACC 374/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 374 OF 2006

(ON APPEAL FROM DCCC 257/2006)

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J U D G M E N T

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

1.  The Applicant pleaded guilty in the District Court before Deputy Judge Lin, to two charges of Trafficking; the drug was cocaine and the total narcotic quantity was 17.6 grammes.  The judge sentenced him on Charge 1 to 4 years (Starting Point 6 years) and, on Charge 2, to a period of 56  months (Starting Point 7 years).  He took totality into account and sentenced the Applicant to 80 months’ imprisonment.

2.  In sentencing, the judge, erroneously, followed the guidelines in Attorney General and Ching Kwok-hung [1991] 2 HKLR 125.  That case sets out the tariff sentences for “Ice”, whereas the correct tariff for cocaine is the same as that for heroin; hence the Lau Tak-ming guidelines apply.  From his Reasons for Sentence and the transcript of proceedings it appears that the judge recklessly, not to say foolishly, relied only on what he was told by counsel as to the correct tariff and did not check the tariff himself.

3.  On the same day as sentence was passed, but after court hours, Mr Pannu who had appeared for the Applicant, notified the court by letter of the error and in consequence the court set a further hearing date.  By the time the court received notice of the error all necessary papers, including the record of sentence, had been signed and delivered to Correctional Services and other relevant authorities.  Thus section 86(1) of the Criminal Procedure Ordinance, Cap. 221, had been complied with.

4.  At the ‘revisiting’ of the sentence the judge had to decide whether the court was functus officio, i.e. whether the court could rectify the sentencing error, or whether the case had to go to the Court of Appeal for correction.  Having heard counsel and after considering various cases, the judge concluded that he was able to re-sentence, because there had been a procedural error which was likely to result in grave injustice to the Applicant if not corrected.

5.  The judge relied on the authority of R v. Wong Tak-sing [1990] 1 HKC 155 in which the court, after reviewing relevant cases, concluded that grave procedural error or mistake, coupled with the likelihood of grave injustice allowed a court to reconsider a matter which for both those reasons had not been determined properly.

6.  The judge stated (B11):-

“	In my view, this case could be distinguished in that the learned judge in dealing with this matter did not refer to situations where an obvious mistake had been made resulting in the adoption of a sentencing guideline which is higher than is established by the higher courts.
	If the order is to be left undisturbed until its eventual correction by the Court of Appeal, grave injustice would be resulted.”

7.  The judge also had to examine his powers under the District Court Ordinance, Cap. 336.  The District Court, a creature of statute, does not have any power to review its decisions, as the ordinance does not provide for it.  In his Reasons for Sentence, he referred to Secretary for Justice v. Yuen Lit Ping [1999] 1 HKC 479, which held that “(1)… A judge’s powers to make orders of substance in criminal cases where a defendant had pleaded or been found guilty, ends once the defendant had been sentenced .... (2) The judge was functus officio once he had pronounced the sentences and the certificate recording the sentences passed by him had been prepared.”

8.  However, the judge believed he could distinguish this case from that of Yuen Lit Ping and re-sentence the Applicant.  He did so – this time following the Lau Tak-ming guidelines.  For Charge 1, he adopted a 3-year starting point and reduced it to 24 months’ for the plea of guilty.  On Charge 2, he took a starting point of 5 years and reduced it to 40 months’ for plea.  He took totality into consideration and ordered that 4 months’ of the sentence on Charge 1, should run concurrently with the sentence on Charge 2, making a total of 60 months’ imprisonment.

9.  The Applicant now appeals against those sentences on the grounds that the starting points were too high and the sentences were manifestly excessive.  Ms Remedios, who appeared for the Applicant, set out the jurisdictional basis on which the judge had purported to sentence, but adopted a neutral stance on the matter, apart from suggesting that for future guidance, it would be helpful if this court gave some indication as to whether the judge had jurisdiction to intervene as he had done.

10.  Two issues arise on this appeal.

11.  Was the judge functus officio when he purported to correct the sentences originally passed?

12.  If not, were the sentences appropriate, according with the tariffs for cocaine and proper sentencing principles?

13.  On the basis of Lau Kwok-wah and The Queen [1979] HKLR 24, it is within the power of an appellate judge to make a downward revision of sentence before his original order has been perfected.

14.  In that case the Appellant had appealed his sentence passed by a Magistrate; his appeal was dismissed.  Two days later, and before the oral appeal judgment was recorded in the magistracy, the appellate court thought that an injustice might have occurred and re-listed the case for hearing.

15.  The court reviewed the authorities and the legislation – in particular R v. Cross (1973) 2 WLR 1049, where a similar fact situation had arisen.

16.  In delivering judgment in Cross, the Lord Chief Justice stated:-

“

It is well recognised that a court of record has power to alter a judgment or order which it has made within certain limits.  The limits set in general appear to be that the power to alter the judgment ceases when the judgment is, in the words of the civil courts, drawn up.  In other words, the general principle seems to be that when once the judgment has been finally recorded, then the inherent power to vary it is lost.”

17.  The facts in HKSAR v Ho Tung-man [1997] 3 HKC 375 more closely approximate those in the present case.  The District Judge convicted Ho Tung-man after trial for attempted robbery.  However 3 days later, when sentencing, he had misgivings about the veracity of the prosecution witnesses, whose previous convictions the prosecution had not disclosed at trial.  In consequence he gave the appellant an absolute discharge.

18.  He then had misgivings about his powers to review his verdict as he had done and the Secretary for Justice sought a review of sentence.

19.  The Court of Appeal allowed the application, dismissed the application for review, and held that the judge, incorrectly, had considered himself functus.  The judge considered there had been a conviction in the case, but a ‘conviction’ comprised two elements – a finding of guilt or the acceptance of a guilty plea and, secondly, the imposition of a sentence.  The judge became functus officio only after he had passed sentence.

20.  Section 86(1) of the Criminal Procedure Ordinance Cap. 221 sets out the requirements for recording a sentence passed in the District Court:-

“	At the end of each day’s sitting of the court, the Registrar shall deliver to the Commissioner of Correctional Services or his deputy, a certificate, in Form 5 Schedule 1, of all sentences passed by the court during that day.”

21.  As the record shows that was done, it appears that the judge in the instant case was functus officio from the time of the delivery of the signed certificate.  His re-sentencing on the 21 August 2006, was a nullity.  Ms Sin, who appeared for the Respondent, fairly conceded both those points prior to this hearing.

22.  We are satisfied that the judge was functus officio when, on the second occasion, he purported to sentence the Applicant.  Although Wong Tak-sing refers to the appeal court having the power to reconsider a matter that had never been determined properly because of procedural error or mistake, we do not consider that such a power is available to the District Court, which has passed sentence and completed the accompanying formalities.  In so stating, we are concerned with the position of a judge at first instance – other considerations might apply to an appeal.

23.  Before we proceed to re-sentence, it is necessary to consider whether the sentences are, as the Applicant submits, manifestly excessive; whether the starting points were too high and whether the judge failed to take into account adequately or at all, that the two offences arose out of the same overall transaction.

24.  Counsel for the Applicant submitted that the brief facts revealed a situation which, for the purposes of sentencing, was one transaction.  With that submission, we agree.  Ms Remediosalso sought to persuade us that a greater discount than the usual ⅓ discount should be given.  When pressed as to what might justify an additional discount, she adverted to the unnecessary inconvenience caused to and the disappointment of, the Applicant when faced with 3 separate sentencing exercises; the depression alluded to in his pre-sentencing report and also, because he was a drug addict, that the court should treat part of the total quantity as being for his own use.  In our view, these matters do not justify an additional discount.

25.  We consider that the sentences imposed on both the first and second occasions were excessive.  In the original sentencing, the judge failed to follow the correct tariff and did not take totality into account correctly.  On the second sentencing, the tariff adopted was correct, but the starting point was too high and totality was not properly assessed.

26.  The proper course was to combine the quantity of drugs, treat the two offences as arising from a single transaction and adopt a global starting point.  The guideline range in Lau Tak-ming for 17.6 grammes of cocaine is 5-8 years.  We believe a proper starting point would be 5½ years.  As the Applicant pleaded guilty he should have the benefit of a full discount of ⅓.

27.  We grant the application for leave to appeal and, treating this hearing as the appeal and the sentences imposed on 21 August 2006 as a nullity, we allow the appeal by substituting sentences as follows: We adopt a global starting point of 5½ years.  On Charge 1, we sentence the Applicant to 32 months’ imprisonment and on Charge 2 to 40 months’ imprisonment.  The sentences are ordered to run concurrently, but we order that 4 months of the sentence on Charge 1 shall run consecutively to the sentence on Charge 2.  The total sentence of imprisonment is 44 months.