FU MAN KIT v. SUPERINTENDENT OF TAI LAM CORRECTIONAL INSTITUTION

CACV 459/2019

[2021] HKCA 1928

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 459 OF 2019

(ON APPEAL FROM HCAL 1640 OF 2018)

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REASONS FOR JUDGMENT

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Hon Yuen JA:

1.  I agree with Barma JA’s reasons for judgment.

Hon Barma JA:

Introduction

2.  This was an appeal by the Superintendent of Tai Lam Correctional Institution (“the Superintendent”)  against the decision of Campbell-Moffat J (“the Judge”)  dated 3 September 2019, by which she allowed the application of Mr Fu Man Kit (“Mr Fu”), made by way of Originating Summons dated 15 August 2018, for a writ of habeas corpus ad subjiciendum (“the writ”)  and ordered the immediate release of Mr Fu from custody of the Superintendent.

3.  By a Notice of Appeal filed on 30 September 2019, the Superintendent challenged both the issuance of the writ and the release of Mr Fu. 

4.  We heard the appeal on 4 June 2021.  At the hearing, the Superintendent was represented by Mr Lewis Law, while Mr Fu was represented by Mr Derek Chan SC and Mr Shaun Kelly.  At the conclusion of the hearing, we allowed the appeal with costs to the Superintendent.  These are my reasons for doing so.

Background

5.  The factual background can be briefly summarised.

6.  On 30 November 2016, Mr Fu was arrested for trafficking in dangerous drugs, contrary to section 4(1)(a)  of the Dangerous Drugs Ordinance (Cap 134).  On 9 July 2018, he stood trial for that offence in the Court of First Instance before the Judge. On the second day of the trial (11 July 2018)  he pleaded guilty to the lesser charge of possession of dangerous drugs, and was thereupon convicted of that offence. On 27 July 2018, Mr Fu was sentenced to a term of imprisonment of 2 years (a total of 731 days).  

7.  Mr Fu had been remanded in custody continuously since the date of his arrest on 30 November 2016.  By the date of his sentencing, he Mr Fu had been remanded in custody for 604 days. 

The proceedings below

8.  After his sentence was pronounced, Mr Fu was detained at Tai Lam Correctional Institution.

9.  By the OS, Mr Fu sought the issuance of the writ, and his release from detention. The OS was supported by the Affirmation of Chau Ying Chau filed on behalf of Mr Fu, which exhibited various documents setting out in some detail the Commissioner’s (and the Superintendent’s)  calculations in respect of the earliest date of discharge of Mr Fu from detention based on their understanding of the provisions for remission under the Prison Rules (Cap 234A)  (“the Rules”), taking account of the period of forfeiture of remission that applied to Mr Fu.

10.  The Judge heard the OS on 15 August 2018.  The Superintendent, having been put on notice of Mr Fu’s application, appeared and was represented by counsel. 

The relevant statutory provisions

11.  Rule 69 of the Rules provides for the granting of remission to prisoners serving a sentence of imprisonment.  The relevant parts of rule 69 are as follows:

“69. Remission of sentence

(1)  A prisoner serving a sentence of imprisonment for an actual term of more than 1 month may, on the ground of his industry and good conduct, be granted remission in accordance with the provisions of this rule:

Provided that this rule shall not permit the reduction of the actual term to less than 31 days.

(2)  The remission granted under this rule shall not exceed one-third of the total of the actual term and any period spent in custody taken into account under section 67A of the Criminal Procedure Ordinance (Cap. 221)  (which relates to the computation of a sentence of imprisonment).

…

(4)  This rule shall have effect subject to any disciplinary award or forfeiture of remission…

…

(5)  In this rule—

(a) actual term ( 實際刑期 ) means the term of a sentence of imprisonment as reduced by section 67A of the Criminal Procedure Ordinance (Cap. 221);

…”

12.  The relevant parts of section 67A of the Criminal Procedure Ordinance, Cap 221 (“the CPO”), referred to in rules 69(2)  and (5)(a)  of the Rules, provide:

“67A. Computation of sentences of imprisonment

(1)  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 …

(1A)  The length of any sentence of imprisonment imposed on a person by a court shall also be treated as reduced by any period during which he was, immediately prior to his first appearance in court in connection with any proceeding relating to the offence for which the sentence of imprisonment was imposed, in custody—

(a)  of the police, Customs and Excise Department or Independent Commission Against Corruption in connection with that offence; …

…

(4)  Any reference in this or any other Ordinance to the length of any sentence of imprisonment shall, unless the context otherwise requires, be construed as a reference to the sentence pronounced by the court and not the sentence as reduced by this section.

…”

The hearing and judgment below

13.  The following matters were common ground between the parties in the hearing below:

(1)  the term of imprisonment imposed upon Mr Fu by the Judge was 731 days;

(2)  his pre-sentence period of remand in custody amounted to 604 days;

(3)  his “actual term” (referred to in rules 69(1)  and (2)  and defined in rule 69(5)(a)  of the Rules, was 127 days (his sentence of 731 days minus 604 days spent on remand in custody);

(4)  In accordance with rules 69(2)  and (4)  of the Rules, Mr Fu could be granted remission of up to 229 days (243 days (being one-third of 127 days plus 604 days), less 14 days deducted due to forfeiture of remission imposed on Mr Fu for misconduct during his time in custody).

14.  The issue dividing the parties was whether Mr Fu, having served 604 days in pre-sentence custody and taking account the maximum remission of 229 days that could be awarded, was eligible for immediate release on the date of his sentencing.  Mr Fu contended that he was (as his sentence net of the maximum remission for which he was eligible (502 days, being 731 days less 229 days maximum remission)  had already been exceeded by the time he had spent in custody.  The Superintendent disagreed, taking the view that the proviso to rule 69(1)  required Mr Fu to serve a minimum of 31 days in prison after sentencing where (as here)  his “actual term” exceeded one month, on the basis that pursuant to the proviso a grant of remission could not have the effect of reducing the “actual term” to less than that period of time.

15.  At the conclusion of the hearing below, the Judge reserved her judgment, and granted bail to Mr Fu pending determination of the application.  On 3 September 2019, the Judge handed down her decision.

16.  Having summarised the background of the case, the law relating to writs of habeas corpus, and the relevant provisions of the Rules and the CPO, the Judge briefly summarised the parties’ contentions.  She then stated (at [11] to [14] of her decision)  that:

(1)  Mr Fu “was and is entitled to remission upon the whole of the sentence, i.e. 731 days”;

(2)  “[The Superintendent] has read the effect of section 67A of the CPO upon Rule 69(2)  too restrictively”;

(3)  the “plain and simple construction” of these provisions is that “the period spent in custody on remand is considered to be time served”;

(4)  the proviso, or the “31-day rule”, was intended to address short prison sentences of 31 days or less for which prisoners would not be entitled to remission and arguably sentences which, once a one-third remission was taken into account would have reduced the number of days to be served to less than 31;

(5)  it could never have been the intention of the legislature, having legislated to allow one-third remission for sentences of imprisonment over 31 days, to require a convicted prisoner to serve a further 31 days, which would have the effect of depriving him of the remission which the legislation allows.

17.  The Judge went on to allow the application and ordered the immediate release of Mr Fu.  She also stated that it had been her intention, when sentencing Mr Fu, to pass a sentence that would enable him to be immediately released.

The arguments advanced on appeal

18.  The grounds set out in the Superintendent’s Notice of Appeal can broadly be summarised as follows:

(1)  an “actual term”, as defined by rule 69(5)(a)  of the Rules was the term of imprisonment to which the prisoner was sentenced, as reduced by the effect of section 67A of the CPO (i.e. the sentence reduced by the number of days spent in custody on remand prior to sentence), represents the length of imprisonment remaining after sentence, not before;

(2)  pursuant to rule 69(1)  of the Rules, only prisoners serving an actual term of more than one month may be granted remission at all, and any remission granted is to be is set off against the actual term, but (pursuant to the proviso)  this cannot result in an actual term of less than 31 days.

19.  At the hearing, Mr Law submitted that the meaning of rule 69(1)  and its proviso were clear, and were as contended for by the Superintendent, and that there was no support in the legislation or in authority for the Judge’s suggestion that the proviso was only to be applied to short sentences.  Thus, the Superintendent clearly had lawful authority to detain Mr Fu for at least 31 days after the date of his sentence, from 27 July 2018 until 26 August 2018.

20.  By a Respondent’s Notice filed on 18 October 2019, Mr Chan SC contended that the Superintendent’s interpretation of rule 69(1)  and section 67A would result in unfairness, in that:

(1)  where the same sentence of imprisonment had been imposed on different prisoners, and where the actual term to be served by each of was more than one month, the longer a particular prisoner had been remanded in custody, the longer that prisoner would have to spend in prison (when the period of custody was added to the actual term)  – thus, Mr Fu would have spent 604 days on remand in custody, and would still have to spend 31 days in prison for a total of 635 days of incarceration, whereas a prisoner (otherwise in the same situation as Mr Fu in terms of length of sentence and loss of remission)  who had spent 502 days on remand in custody, would also spend a further 31 days in prison for a total of 533 days of incarceration, a prisoner who had been on remand in custody for less than 502 days would be released after a total of 502 days incarceration; and

(2)  if the number of days of remand were the same and the custodial sentences imposed are more than or equal to the number of days of remand, some prisoners on whom different lengths of sentences had been imposed could still end up serving the same overall period of incarceration.

21.  At the hearing, Mr Chan SC relied on the distinction between a term of imprisonment as imposed by the sentencing court and the service of such term, and argued that as a term of imprisonment as such could not be reduced (although the service of it could be), it was illogical and meaningless for the proviso to rule 69(1)  to speak of a reduction of the “actual term” by way of remission.  Mr Chan suggested that “actual term” in the proviso must have been intended as a reference to the term served, as opposed to the sentence passed.

22.  Mr Chan SC also submitted that manifest unfairness would result from the operation of the proviso if it was taken literally, and that the legislature could not have intended for prisoners sentenced to the same term of imprisonment to be treated differently depending on the time spent in detention prior to sentence, and relied on the principle of fairness as a canon of statutory construction.

23.  He also referred to Hansard, where the Attorney General’s speech on the second reading of the Criminal Procedure (Amendment)  Bill explained that the purpose of the legislative changes was to enable time spent on remand in custody to be counted towards service of a sentence of imprisonment, and submitted that this would not be achieved on the Superintendent’s construction, as 31 days of time spent in remand would not count towards remission.

24.  As a fall back position, Mr Chan SC submitted that even if we agreed with Mr Law on the issue of interpretation, we should not make an order for the re-arrest of Mr Fu as (it was submitted)  we had no jurisdiction to do so.  Even if this was not right, and we had jurisdiction to make such an order, Mr Chan SC suggested that we should not do so in the light of the Judge’s intention that Mr Fu should have been immediately released.

25.  In his reply, Mr Law took issue with Mr Chan SC’s submissions as to this court’s power to order Mr Fu to be re-arrested and re-detained.

The issues on this appeal

26.  Thus, there are essentially two issues for consideration.  First, what is the proper construction of rule 69 of the Rules (in particular rule 69(1)  and its proviso).  Second, if Mr Fu was, on the proper construction of rule 69, required to serve 31 days’ imprisonment in this case, whether this court could and should make an order for the re-arrest or re-detention of Mr Fu for the purpose of serving his remaining term of 11 days (being the period from 15 August 2018 when Mr Fu was granted bail by the Judge, until 26 August 2018 which was the earliest date of discharge according to the Superintendent).

Discussion

Construction of rule 69 of the Rules

27.  For reasons which will become apparent, the single issue on which this appeal turns is that of the proper construction of rule 69, and in particular the proviso to rule 69(1), of the Rules.

28.  The power to grant remission of sentence to a prisoner in accordance with rules 69(1)  and (2)  of the Rules is discretionary, and is to be exercised by the Commissioner (or Superintendent in his stead).  In Wong Tak Wai v Commissioner of Correctional Services[2010] 4 HKLRD 409, Kwan JA (as she then was)  stated as follows:

“90.  Rule 69(1)  provides that a prisoner serving a sentence of imprisonment for an actual term of more than 1 month may, on the ground of his industry and good conduct, be granted remission in accordance with rule 69. By rule 69(2), the remission granted shall not exceed one-third of the total of the actual term. It is provided in rule 69(4)  that remission of sentence under this rule is subject to any disciplinary award or forfeiture of remission. Remission under rule 69 is set in discretionary terms, it does not confer on the prisoner any legal right or entitlement…

91.  In practice, on arrival in prison, a prisoner will be informed of his earliest date of discharge, which is remission up to one-third of his sentence, and the latest date of his discharge, which is the term of his sentence, and these dates are written on his identity tag. The rules for calculating remission of sentence are invariably applied, subject to forfeiture being ordered as a result of a disciplinary offence, so a prisoner can expect his release on his earliest date of discharge. This was the same practice in the United Kingdom under the old system.” (emphasis added)

29.  As Kwan JA observed, in the usual course of events, a convicted defendant having been sentenced to imprisonment will be informed, upon arrival in prison, of his “earliest date of discharge”, meaning the earliest date on which, after taking into consideration any applicable period of remission and forfeiture, he could be released.  Rule 69 of the Rules governs how remission is to be calculated. It is to be noted that under rule 69(2), the amount of remission is set at a maximum of one-third of the total of the actual term and any period spent in custody that has been taken into account under section 67A of the CPO.  There is clearly no entitlement to one-third remission, although it is to be expected that the maximum permissible remission under the Rules will be granted, subject to the possibility of forfeiture of remission.

30.  The starting point for calculating remission is rule 69(1), which determines whether a prisoner is actually eligible for remission in the first place. There is no dispute in the present case that Mr Fu is eligible for remission, given that his actual term (of 127 days)  is more than 31 days.  The difference between the parties concerns whether Mr Fu should have to serve 31 days post-sentence, or whether he should (as the Judge apparently intended)  be immediately released. 

31.  To determine this, it is necessary to consider the proviso to rule 69(1), which states:

“Provided that this rule shall not permit the reduction of the actual term to less than 31 days” (emphasis added)

32.  The proviso, employing as it does the word “shall”, is mandatory in nature.  In my view, on the plain reading of rule 69(1)  in its totality, the “reduction” referred to in the proviso clearly means reduction of the “actual term” as a result of any remission granted in accordance with these provisions.  Thus, whatever remission may be granted cannot have the effect of reducing the actual term to less than 31 days.  The consequence is that any prisoner serving an actual term of more than 31 days may (depending on the amount of remission that he can be granted)  have the length of his imprisonment reduced, but not below 31 days.

33.  This clearly ties in with the body of rule 69(1), which makes it clear that remission is not available at all for a prisoner who has to serve an actual term of less than one month.  It makes no sense at all for such a prisoner to have to serve the whole of whatever his actual term may be, while a prisoner who has a longer actual term may be able to walk free immediately upon sentence, if the amount of remission for which he may be eligible permits it, as is submitted on behalf of Mr Fu.  To my mind, it is clear that the effect of rule 69(1)  and its proviso is to provide for prisoners who have an actual term to serve to serve their actual term if it is less than one month, and at least 31 days (one month)  if it is longer than that.

34.  I am not persuaded that any of Mr Chan’s submissions justify a different conclusion.

35.  As to his argument based on the distinction between a term of imprisonment (which cannot be reduced)  and the service of that term (which can be), this overlooks the fact that “actual term” as used in the Rules is not itself (and does not refer to)  a term of imprisonment, but is simply a defined term with the meaning given to it by rule 69(5)(a).  That meaning is plain – the “actual term” is simply the term imposed by the sentencing judge less time spent on remand in custody.  In other words, it is the remaining term to be served after the time spent in custody before sentence is taken into account.  If, instead of using the shorthand “actual term”, the Rules had referred to the remaining term to be served, the position would be crystal clear.  Under rule 69(1)  a prisoner would only be eligible for remission at all if his remaining term to be served exceeded one month.  By virtue of the proviso to rule 69(1), the Rule does not permit the reduction of the remaining term to be served to less than 31 days. The proviso limits the amount of remission that can be granted where its terms are engaged.  This is entirely consistent with the fact that pursuant to rule 69(2)  the amount of remission to be granted cannot exceed one-third of the remaining term to be served plus the time already spent in custody prior to sentencing.

36.  Further, the proviso to rule 69(1)  is plainly predicated on the notion that the actual term can and will be reduced by any remission that may be granted.  This strongly militates against this argument of Mr Chan SC. 

37.  At this juncture, I should mention that at the hearing, we invited submissions from the parties on the decision of Carswell LCJ in the Northern Irish case of In the Matter of an Application by Paul Nicholl for Judicial Review [2003] NIQB 12(dealing with Northern Irish provisions relating to remission (rules 30(1)  and (7)  of the Prison and Young Offenders Centre Rules (Northern Ireland)  1995)  which were materially identical terms to rule 69(1)  and 69(5)(a)  of the Rules), which appeared to support the submissions of Mr Fu.  In that case, Carswell LCJ (as Lord Carswell then was)  took the view that as an “actual term” was the remaining term before remission is taken into account, one had to disregard remission when considering whether or not the actual term had been reduced to less than the specified minimum.  Although Mr Chan SC tried to persuade us otherwise, I am, with respect, unable to agree with the views expressed by Carswell LCJ.  It seems to me that once it is understood (as explained in [35] above)  that “actual term” is simply shorthand for the remaining term to be served, the meaning and effect of the provisions is clear, and there is no incongruity in regarding the remaining term to be served as being capable of reduction by remission.  Moreover, Carswell LCJ’s interpretation would seem to have the effect of rendering the proviso to rule 30(1)  of the Northern Irish rule (equivalent to the proviso to our rule 69(1)  of the Rules)  entirely otiose, as it would make it impossible for an actual term of more than 31 days to be reduced to an actual term of less than 31 days if remission had to be ignored.

38.  As for Mr Chan SC’s submission that the interpretation of rule 69(1)  that I regard as the correct one could have unfair results, and as such offended against the notion of fairness as a canon of statutory construction, I do not think that this is correct.  It is true that there may be cases where some prisoners could have to serve more time in prison (on remand and thereafter)  than others given the same sentence, depending on the length of their incarceration prior to sentencing.  But this is not necessarily unfair.  The length of pre-sentencing incarceration will depend on many factors, ranging from the prosecutions’ need to gather evidence and prepare for trial, to the courts’ availability to hear the case, to pre-trial or adjournment applications made on behalf of the defendant.

39.  Further, it seems to me that Mr Fu’s construction of rule 69(1), which would result in his immediate release also produces unfairness (at least as great as that alleged by Mr Fu).  Take this example. Mr Fu, having been in custody for 604 days prior to sentencing, would on his proposed construction of rule 69(1)  be entitled to immediate release, as would any other prisoner given the same sentence who had served up to 699 days of pre-sentencing custody (as such a prisoner would have an actual sentence of 32 days – in excess of one month).  But a prisoner who had been in custody for 702 days or more would have an actual term of 29 days (or less)  and would not be entitled to remission at all, despite having been incarcerated for longer.  This seems to me to be at least as unfair (if not more so)  than the unfairness posited on behalf of Mr Fu.

40.  For these reasons, I do not accept the premise of unfairness put forward by Mr Fu.

41.  Moreover, it is clear from rule 69(1)  and its proviso that the legislative intention was that prisoners with a remaining term to serve of more than one month should serve at least one month of it, and it is well established that where the terms of the legislation are clear (as is the case here), there is no room for the operation of the “fairness” canon of construction.

42.  It follows that the “fairness” argument must be rejected.

43.  As for the suggestion by Mr Chan SC that the legislative intention (mentioned in the speech of the Attorney-General in Hansard)  that time spent in pre-trial custody should be given credit for would not be achieved by the interpretation that I consider to be the plainly correct one, I disagree. Credit will still be given for pre-sentencing custody, albeit perhaps not all of it.  But this is still a considerable advance on the previous position, under which none of the time spent in pre-sentencing custody could enure to the benefit of a convicted defendant.  It therefore seems to me that there is no question here of the stated legislative intention being defeated.

44.  Further, it may be noted that under the former version of the Rules (the Prison Rules 1954)  (where there was no question of time spent in custody prior to conviction and sentencing being taken into account), the effect of the rules was to require all prisoners to serve a minimum period of 31 days’ imprisonment. There is nothing in the legislative materials that suggests that there was any intention to alter this.  This further undermines the point sought to be made by Mr Chan SC on the basis of Hansard.

45.  For all of the foregoing reasons, I am satisfied that the construction of rule 69 of the Rules is as contended for by Mr Law, and that the construction proposed by Mr Chan SC must be rejected.  It follows that Mr Fu, who had an “actual term” of 127 days, was required to serve at least 31 days in prison following his sentence, and that his application for habeas corpus should have been rejected by the Judge.

46.  As to Mr Chan SC’s fall back position that this court lacked jurisdiction to order Mr Fu to be re-arrested to serve the remaining 11 days of his actual term, or should not order such re-arrest even if it had jurisdiction to do so, this does not arise for consideration in the circumstances of this case, because, as it happens, Mr Fu was arrested for another offence prior to the hearing of this appeal, and was actually in custody when the appeal was heard.  As we were told by Mr Law (with whom Mr Chan SC did not disagree)  that it is possible for the Superintendent to make administrative arrangements for Mr Fu to serve the remainder of his sentence of 11 days (retrospectively or otherwise), without the need for a court order compelling his return to prison, the need to make an order for the re-arrest of Mr Fu does not arise, and the questions of whether we have power to do so, and if so, whether we should make such an order in the exercise of our discretion, are academic and need not be considered.

47.  For all of the foregoing reasons, the appeal was allowed and the writ issued by the Judge was discharged.  As Mr Chan SC accepted that costs should follow the event, we ordered that costs here and below should be to the Superintendent, to be taxed on the party and party basis if not agreed.  Further, as Mr Fu was legally aided, we also made an order for Legal Aid taxation of his costs, with a certificate for two counsel.

Hon Au JA:

48.  I agree with Barma JA’s reasons for judgment.