HKSAR v. LAM KWOK WAH

CACC 265 & 266/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 265 & 266 OF 1999

(ON APPEAL FROM DCCC 712 & 1218 OF 1993)

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J U D G M E N T

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Woo, J (giving the judgment of the Court) :

1. On 23 January 1995, His Honour Judge Kilgour of the District Court sentenced the Applicant in two District Court cases for the offences charged against him under two indictments. The first case was No.DCCC 712 of 1993 in which the Applicant pleaded guilty to a single charge of trafficking in 32.89 grammes of a mixture containing 16.22 grammes of salts of esters of morphine. The second case was No.DCCC 1218 of 1993 in which the Applicant pleaded guilty to three charges, namely :

(1) possession of offensive weapon;

(2) robbery; and

(3) theft.

2. In his oral Reasons for Sentence (which had been transcribed), having considered the criminal record of the Applicant and the offences charged in the second case were committed while the Applicant was released on bail under the first case, the Judge had this to say :

" I have decided that overall, the actual sentence that will be imposed on you is one of 4 years and 3 months and that marks a very, very considerable reduction of what might have been potentially possible in your case. I propose to deal with it in this way; for the trafficking charge you will go to prison for 3 1/2 years. For the possession of the offensive weapon in a public place, I impose a sentence of 1 year. For the robbery charge, I impose a sentence of 3 years and 9 months and for the second robbery charge, a like sentence of 3 years and 9 months. All those sentences on the second indictment will be concurrent but I have powers under the District Court Ordinance, section 82, to make the sentences on this indictment overlap with the other indictment and what I do, in fact, is to order that that sentence does not start to run until you have served 9 months of the trafficking sentence. So the total sentence is 4 years and 3 months and that represents a very considerable reduction of what might have been a 6 to 7 or even 8 year sentence had these matters been dealt with separately."

3. The Applicant is now seeking leave to appeal against sentence out of time. In his affirmation in support of the application, the Applicant affirmed that at the time the sentences were passed on him by the Judge, he heard the Judge say through the Court Interpreter that for the 3 years and 9 months' sentence in respect of the robbery case, 9 months would be served consecutively, the remaining 3 years would be served concurrently with the 3 years and 6 months' sentence on the drug case, making a total sentence of 4 years and 3 months. He also affirmed that upon his inquiry, he received a letter of 9 December 1996 from the Judiciary Administrator that the sentences that he was serving for the two cases were 4 years and 3 months in total. However, upon further inquiry, he received another reply from the Judiciary Administrator dated 20 April 1999, telling him that the correct sentences of those two cases should be 4 years and 6 months instead of 4 years and 3 months, and that the reply he had previously received was incorrect.

4. Apparently, the confusion was caused by the ambiguity in the language used in the oral Reasons for Sentence. Notwithstanding this Court finds the intention of the Judge pellucid that the total term of imprisonment to be served by the Applicant for all the offences in the two cases was 4 years and 3 months. It can be noted from the passage cited that there were two clear references, namely :

(1) the Judge said : "... the actual sentence that will be imposed on you is one of 4 years and 3 months ..."; and

(2) he also said : "... So the total sentence is 4 years and 3 months ...".

The ambiguity was created by the method to which his intention was said to have given effect because the Judge stated that "he propose(d) to deal with" his announced intention "in this way", that is, by ordering that the sentences totalling 3 years and 9 months in the second case did not start to run until the Applicant had served 9 months of imprisonment for the trafficking offence. The result is that after serving 9 months of the 3 1/2 years' sentence of the trafficking offence, the sentences for the second case would start to run when the sentences for both cases would run concurrently. However, this method would create a total term of 4 years and 6 months instead of the 4 years and 3 months as clearly intended by the Judge. This method, not being able to reflect the intent, was wrong.

5. As the Judge's intention in passing a total term of 4 years and 3 months is so clear, this Court is duty bound to correct the wrong method used and clear the ambiguity by putting the record straight.

6. Despite the great delay in the application to appeal against sentence out of time, we think that this is a proper case for this Court to interfere. The delay was caused by the late realisation of the ambiguity by the Applicant and all concerned. We will substitute the Order of the Judge with an Order that the sentences in the second case would start to run 6 months after the Applicant commenced to serve his sentences imposed in the first case, and thereafter, the sentences in both cases to run concurrently, so that the term of imprisonment to be served by the Applicant for the two cases amounts to 4 years and 3 months.

7. This is not an academic exercise because we have been informed by Counsel for the Applicant that the Applicant is currently serving a consecutively sentence of 5 years for robbery and, it is important to know when this consecutive sentence of 5 years for robbery would start to run. According to our Order, that should run after the Applicant has served 4 years and 3 months of the sentences imposed on him in respect of the two District Court cases.

8. The Judge also made a mistake in passing a concurrent sentence of 3 years and 9 months for the third charge in the second case because apparently he treated it as a robbery which was in fact a theft. However, we do not think that that would warrant any reduction of sentence because the robbery charge itself, that is the second charge in the second case, properly and correctly attracted the sentence of 3 years and 9 months. And even if a proper sentence for the theft charge was passed by the Judge, that sentence would run concurrently with the robbery sentence. We do not see this being a ground for our necessary interference.

9. We therefore allow the application, grant leave to appeal against the sentence out of time and allow the appeal against sentence. The sentence to be served by the Applicant in both cases should total 4 years and 3 months.