HKSAR v. HAU KIN

FACC Nos. 16, 17 & 18 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 16 OF 2004 (CRIMINAL)

(ON APPEAL FROM CACC NO. 99 OF 2000)

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FINAL APPEAL NO. 17 OF 2004 (CRIMINAL)

(ON APPEAL FROM CACC NO. 564 OF 1999)

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FINAL APPEAL NO. 18 OF 2004 (CRIMINAL)

(ON APPEAL FROM CACC NO. 88 OF 2000)

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Date of Judgment: 10 March 2005

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 J U D G M E N T

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Chief Justice Li:

1.  For the purpose of deterring unmeritorious applications for leave to appeal to the Court of Appeal in criminal cases, s. 83W of the Criminal Procedure Ordinance, Cap. 221 confers on that court the power to direct that “the time during which an appellant is in custody pending the determination of his appeal” shall not be reckoned as part of the term of the sentence to which the appellant is subject.  This power is known as the power to order loss of time.  The question arising in these appeals is the interpretation of this provision as to the period of time which could be subject to such a direction.  If in the appeals in question, the periods of time directed by the court had exceeded the maximum periods permitted by the provision, the Court would have to consider the proper orders to be made.

Section 83W(1)

2.  Section 83W(1) provides:

“	The time during which an appellant is in custody pending the determination of his appeal shall, subject to any direction which the Court of Appeal may give to the contrary, be reckoned as part of the term of any sentence to which he is for the time being subject.”

The power to order loss of time under this provision was fully considered by the Court in Chau Ching Kay v HKSAR (2002) 5 HKCFAR 540.  By virtue of this provision, the time during which an appellant is in custody pending the determination of his appeal shall be counted as part of the term of his sentence of imprisonment.  But the court may direct the contrary, that is, that such time should not be counted.

3.  The purpose of the power to make such an order is to deter unmeritorious applications.  Judicial resources are of course limited.  They should be spent on dealing with meritorious applications and should not be unnecessarily diverted to dealing with unmeritorious applications.  Any such diversion would delay the disposal of meritorious cases to the prejudice of the appellants in those cases.  As the Court pointed out in Chau Ching Kay, an order directing loss of time has the penalizing effect of increasing the sentence but an order is warranted if there be a total lack of merits in the application.  See Chau Ching Kay at paras 61, 71 and 73.

Interpretation

4.  The question concerns the proper interpretation of the phrase “the time during which an appellant is in custody pending the determination of his appeal” in s. 83W(1).  On a plain reading of the provision, the time is the period between the filing of his application for leave to appeal and the determination of his appeal.  The determination of an appellant’s appeal is only pending after he has filed his application for leave to appeal.  Accordingly, the period between the filing of his application for leave to appeal and the determination of his appeal is the maximum period which the court may direct should not be counted as part of the term of his sentence of imprisonment.  It is this period which the court may order as lost time.  The court may of course order only part of this period to be lost.

5.  Mr Patrick Cheung for the respondent quite properly concedes that this is the proper interpretation of s. 83W(1).  He pointed out that the same interpretation has been adopted in England.  Section 29(1) of the Criminal Appeal Act 1968 is in identical terms to s. 83W(1) and successive practice directions in England have adopted the same interpretation of the provision in relation to the period which could be subject to a direction for loss of time.  See Practice Direction: Applications for Leave to Appeal (1970) 54 Cr.App.R. 280 at 281, Practice Direction (Crime: Sentence: Loss of Time) [1980] 1 W.L.R. 270 C-D, Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 W.L.R. 2870 para 16.1.

The appeals

6.  In each of the three cases before the Court, the appellant applied for leave to appeal against sentence.  In dismissing each application, the Court of Appeal ordered that three months spent in custody by the appellant should not be counted as part of the term of the sentence of imprisonment he was serving.  In each instance, the period between the filing of his application for leave to appeal against sentence and the Court of Appeal’s decision dismissing his application was less than three months.  The time ordered to be lost had therefore exceeded the maximum period permitted under s. 83W(1).  The facts in relation to each appeal were as follows.

Hau Kin

7.  On 3 March 2000, the appellant pleaded guilty in the Court of First Instance to offences of robbery, assault with intent to rob and attempted robbery, and was sentenced to a term of imprisonment for nine years.

8.  On 22 March 2000, he filed his notice of appeal applying for leave to appeal against sentence.

9.  On 8 June 2000, the Court of Appeal heard his application, with the appellant appearing in person.  As recorded in its judgment, the appellant did not provide any written reasons for his application and added nothing in court which was material to his application.  The Court of Appeal stated: “we are in no doubt that the judge’s sentence was entirely appropriate” and dismissed his application.  It considered that the application “was without the slightest merit” and ordered loss of time to the extent of three months.

10.  But the maximum period permitted under s. 83W(1), being the period between the filing of his application for leave to appeal and its dismissal, was only two months and 17 days.  The order for three months’ loss of time had therefore exceeded the maximum period by 14 days.

Ho Fook Shing

11.  On 6 May 1998, the appellant pleaded guilty in the Court of First Instance to the offence of trafficking in dangerous drugs and was sentenced to a term of imprisonment for 10 years.

12.  On 9 November 1999, he filed his notice of appeal applying for leave to appeal against sentence.

13.  On 13 January 2000, the Court of Appeal heard his application, with the appellant appearing in person.  As recorded in its judgment, the appellant complained that the judge was wrong to order the sentence of imprisonment to run consecutively with the sentence which had been imposed on him by the District Court for an earlier offence.  The appellant also referred to some cases in the Court of First Instance and the District Court.  The Court of Appeal considered that the cases referred to were not relevant and of no assistance.  It held that the sentence imposed on the appellant “was in no way excessive” and dismissed his application.  It ordered loss of time to the extent of three months “as the application is completely devoid of any merit”.

14.  But the maximum period permitted under s. 83W(1), being the period between the filing of his application for leave to appeal and its dismissal, was only two months and three days.  The order for three months’ loss of time had therefore exceeded the maximum period permitted under s. 83W(1) by 28 days.

Wong Man Hon

15.  On 18 February 2000, the appellant pleaded guilty in the Court of First Instance to offences of possession of and trafficking in a dangerous drug and importing unmanifested cargo and was sentenced to a term of imprisonment for 12 years.

16.  On 3 March 2000, he filed his notice of appeal applying for leave to appeal against sentence.

17.  On 28 April 2000, the Court of Appeal heard his application, with the appellant appearing in person.  As recorded in its judgment, the appellant relied in mitigation on the circumstances leading him to commit the offence.  The Court of Appeal concluded that the overall sentence of 12 years’ imprisonment was wholly proper and was if anything a shorter sentence than the appellant might have received.  It considered that the mitigation advanced on appeal took the matter no further at all and that the sentence imposed “cannot possibly be criticised as having been too long”.  It dismissed the application as one “which is without the slightest merit” and ordered loss of time to the extent of three months.

18.  But the maximum period permitted under s. 83W(1), being the period between the filing of his application for leave to appeal and its dismissal, was only one month and 24 days.  The order for three months’ loss of time had therefore exceeded the maximum period by 36 days.

Disposal of appeals

19.  Accordingly, in each of the three cases, the appeal must be allowed.  It is open to the Court to remit the cases to the Court of Appeal to consider the question of loss of time or to consider that question itself.  See s. 17(1) and (2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

20.  In each of the three cases, the Court of Appeal concluded that the application for leave to appeal against sentence was totally unmeritorious with expressions such as “without the slightest merit” and “completely devoid of any merit”.  These conclusions have not been seriously challenged.  Having regard to them, the Court is of the view that it should itself consider the question of loss of time and that in each instance, it should vary the order of the Court of Appeal by reducing the period of three months to the maximum period permitted under s. 83W(1); that is, in the case of Hau Kin, to two months and 17 days; in the case of Ho Fook Shing, to two months and three days; in the case of Wong Man Hon, to one month and 24 days.

21.  It should be noted that it was the Commissioner of Correctional Services who first drew attention to the possible problem with the orders made by the Court of Appeal.  This showed a proper respect for the legal rights of the appellants which should be commended.

Mr Justice Bokhary PJ:

22. I agree with the judgment of the Chief Justice.

Mr Justice Chan PJ:

23. I agree with the judgment of the Chief Justice.

Mr Justice Ribeiro PJ:

24.  I agree with the judgment of the Chief Justice.

Sir Gerard Brennan NPJ:

25.  I agree with the judgment of the Chief Justice.

Chief Justice Li:

26.  The Court unanimously allows the appeals and varies the orders of the Court of Appeal for loss of time by reducing the periods of three months ordered to the periods set out in paragraph 20 above.