HKSAR v. SYED HASAN SEHARWERDY

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 91 OF 1998

(On appeal from SKC 4470 of 1997)

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J U D G M E N T

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1. This is an appeal against sentence. Mr Lee for the Appellant informs me that he now abandons the two grounds of appeal set out in his Perfected Grounds of Appeal against Sentence. He now appeals on a new ground.

2. The Appellant was arrested on 17th October last year on suspicion of trafficking in dangerous drugs. He was detained in custody and has been in custody ever since. It was not until 21st October last year that it was discovered by the authorities that he was in breach of a deportation order, and it was not until 31st December last year that he was charged with the offence of breach of a deportation order.

3. As things turned out, he was not prosecuted for trafficking in dangerous drugs, the suspected offence for which he was arrested in October 1997. On 31st December 1997, the day on which he was charged, he appeared in the Magistrate's Court sitting at South Kowloon before Tong Man Esquire. He appeared in that court on the breach of deportation order charge and pleaded guilty to that charge. He was sentenced to 9 months' imprisonment.

4. By reason of Section 67(A) of the Criminal Procedure Ordinance, Cap. 221, the time which he spent in custody between the period from 17th October 1997 when he was first arrested for drug trafficking and 31st December 1997 when he was charged with breach of a deportation order does not automatically count toward his sentence. It is urged on the Appellant's behalf that even if a 9 month sentence were otherwise appropriate, it would amount to excessive punishment given that such period in custody is not taken into account.

5. At one stage, his counsel suggested I should order that the 9 month sentence do run from 17th October 1997; but he later recognised that if the custody period were to be deducted from the Appellant's sentence, that should be done by ordering the length of sentence to be reduced rather than by ordering the sentence do commence on 17th October 1997.

6. Ms Leung for the prosecution accepted that if such facts were made known to the Magistrate at the time, the Magistrate might well have taken the period of custody into account when sentencing, and she conceded that it would be just in all the circumstances of this case that the court should accede to Mr Lee's submission.

7. All things considered, I am of the view that the just course in all the circumstances is indeed to reduce the sentence. Accordingly, I allow the appeal and reduce the sentence by 3 months from 9 months to 6 months' imprisonment.

8. The appeal is allowed accordingly.