THE SECRETARY FOR JUSTICE v. MAK WAI HON

CAAR 2/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 2 OF 1999

(ON REVIEW FROM DCCC NO. 1231 OF 1998)

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J U D G M E N T

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Keith J.A. (giving the judgment of the Court):

Introduction

1. On 28th January 1999, the Respondent was sentenced by Judge Davies in the District Court to suspended terms of imprisonment for two offences relating to the possession of infringing copies of copyright works. The Secretary for Justice applied for a review of those sentences. On 8th September 1999, the Court of Appeal granted that application, the sentences imposed by the judge were set aside, and the Respondent was sentenced to terms of 6 months' and 9 months' imprisonment on the two charges, to be served concurrently with each other, making 9 months' imprisonment in all.

2. However, what the Court of Appeal had not been told was that the Respondent had, on 8th February 1999 (i.e. less than two weeks after he had been sentenced by Judge Davies), been sentenced to terms of imprisonment of immediate effect by Judge Toh for three similar offences relating to the possession of infringing copies of copyright works. He was sentenced to terms of 16 months', 12 months' and 2 months' imprisonment on the three charges, to be served concurrently with each other, making 16 months' imprisonment in all. Had the Court of Appeal been told that on 8th September 1999, it would have had to consider whether the sentences totalling 9 months' imprisonment which it was imposing continued to be appropriate, and whether they should be served consecutively to or concurrently with, or partly consecutively to and partly concurrently with, the sentences totalling 16 months' imprisonment imposed by Judge Toh. The sentences imposed by Judge Toh were recently brought to the attention of the court by the Commissioner of Correctional Services, who wishes to compute the date on which the Respondent is to be released from prison. Having received such a notification, the court ordered that the case be re-listed for hearing.

Functus officio

3. Sentences of imprisonment take effect from the date on which they are imposed, unless the court orders that the sentence should take effect from some other date. Even then, though, the court can only make such an order pursuant to a specific power to do so. The Court of Appeal had the power to do so on 8th September 1999. That is because section 82(1) of the District Court Ordinance (Cap. 336) provides:

"Where the Court sentences any person to undergo a term of imprisonment for an offence, and such person is already undergoing .... imprisonment for another offence, it shall be lawful for the Court to direct that such imprisonment shall commence at any time during or at the expiration of the term of imprisonment which such person is then undergoing ...."

Although "the Court" is defined in section 2 as meaning "the District Court", the powers conferred on the Court of Appeal by section 81B(1)(a) of the Criminal Procedure Ordinance (Cap. 221) are to be construed as sufficiently wide to permit the Court of Appeal to pass such sentences as the District Court was empowered to pass. The critical question is whether the Court of Appeal still has the power now to make an order providing for how the sentences it imposed on 8th September 1999 are to be served.

4. There must come a time in any proceedings when the court has to be regarded as having completed its task. When that time is reached, the court is said to be, to use the Latin phrase, functus officio. Once that stage has arrived, the court has no jurisdiction over the case. In R. v. Cross [1973] 2 W.L.R. 1049, Lord Widgery C.J. said at p.1051B:

"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."

In that case, the Court of Appeal in England concluded that the principle applied to the Court of Appeal as it did to any other court of record. We agree.

5. The Court of Appeal in Hong Kong is also a court of record. How is an order of the Court of Appeal in an application for a review of sentence under section 81A of the Criminal Procedure Ordinance "finally recorded"? Rule 62(1) of the Criminal Appeal Rules provides:

"On the final determination of any appeal the Registrar shall give to the appellant, if he is in custody and has not been present at such final determination, and to the Commissioner of Correctional Services notice of such determination ....."

Although this is a reference to an appeal, it must, we think, apply also to an application for review under section 81A of the Criminal Procedure Ordinance. Since the Respondent was present on 8th September 1999, the notice had only to be given to the Commissioner of Correctional Services. That notice was given on 8th September 1999. It follows that, but for the following point, the court was functus officio from that date.

6. However, in R. v. Wong Tak Sing [1990] 1 HKC 155, the Court of Appeal mined a rich vein of authority to unearth another basis on which an appeal might be re-listed, when the court might otherwise be regarded as functus officio. At p.157F-G, Yang C.J. said:

"[In] R. v. Grantham [1969] 2 QB 574 and R. v. Daniel (1976) 64 Cr. App. R. 50, ..... the court recognised a power 'to reconsider a matter if it has never properly been determined owing to some procedural error or mistake' per Widgery L.J. in Grantham p.579 and which has resulted in 'a likelihood that injustice has been done' per Lawton L.J. in Daniel p.53. Both ingredients are necessary."

The impact which the sentences imposed by Judge Toh should have on the sentences to be considered on 8th September 1999 was never determined as a result of whatever mistake it was which caused the sentences imposed by Judge Toh not being brought to our attention. But could it be said that an injustice has been done to the Respondent, bearing in mind that as a result of the mistake the sentences, if unaltered, would have taken effect on 8th September 1999, and would therefore have been served concurrently with the sentences imposed by Judge Toh?

7. The answer, we think, is that an injustice was done to the Respondent. Our process of reasoning is as follows. Where a defendant has been sentenced for one group of offences on one occasion, and shortly afterwards has to be sentenced for another group of offences, the court on the latter occasion should approach the question of sentence as if the two groups of offences had been heard together. Otherwise, it would be difficult to give effect to the totality principle. That especially applies where the two groups of offences, as here, are of a similar kind. Thus, if on 8th September 1999 the court had known of the sentences which had been imposed by Judge Toh, the court would have had to decide, having regard to the totality principle, what should have been the Respondent's total sentence. Suppose, for example, that the court had taken the view that a total sentence of, say, 18 months' imprisonment was appropriate, the sentences which the court would have imposed on 8th September 1999 would have had to total less than 9 months' imprisonment, because even if those sentences had been ordered to be served concurrently with the sentences imposed by Judge Toh, the Respondent would, having regard to the lapse of time between the imposition of the two groups of sentences, have served a total sentence longer than 18 months' imprisonment.

8. That can be demonstrated by looking at the Respondent's release date. On the assumption that he had been on bail prior to being sentenced by Judge Toh, and on the further assumption that he would have earned full remission, sentences totalling 18 months' imprisonment imposed on 8th February 1999 would have resulted in the Respondent being released on 8th February 2000. A sentence of 9 months' imprisonment imposed on 8th September 1999, even if it took immediate effect, would have resulted in the Respondent not being released until 8th March 2000. And if the Respondent had been in custody prior to 8th February 1999 pending his trial on the charges for which he was sentenced on that occasion, the injustice to him would have been even greater. Thus, the Respondent suffered an injustice as a result of the mistake, because he was denied the opportunity to have the totality of his criminality determined by the Court of Appeal, which might have resulted in his earlier release from prison. Accordingly, the court is not functus officio, and the sentences which we imposed on 8th September 1999 may be reconsidered.

The appropriate sentences

9. In one respect, the Respondent is liable to be treated less leniently today for the offences for which he was sentenced on 8th September 1999. The sentences for which he was sentenced by Judge Toh were committed on 20th June 1997 (which was the date of his arrest), and the offences for which he was sentenced on 8th September 1999 were committed on 5th April 1998. Accordingly, the offences for which he was sentenced on 8th September 1999 were committed while he was on police bail for the offences for which he was sentenced by Judge Toh.

10. As for the offences for which he was sentenced by Judge Toh, they were virtually identical to the offences for which he was sentenced on 8th September 1999. The Respondent was admittedly charged under the old Copyright Ordinance, but the offences were the equivalent of those in section 118(1)(d) of the new Copyright Ordinance. They involved 33,594 video compact discs, and 211 CD-ROMs. When interviewed, the Respondent said that he had been paid $10,000.00 a month for labelling and delivering compact discs, which he knew to be infringing copies.

11. Looking at the totality of the offences committed by the Respondent, we think that the correct starting point in his case would have been 30 months' imprisonment. His pleas of guilty and other mitigation justify a one-third discount, reducing that sentence to 20 months' imprisonment. He had been on bail prior to being sentenced by Judge Toh, and therefore if he had been sentenced to 20 months' imprisonment by Judge Toh on 8th February 1999, he would, if he earned full remission, be released in the middle of March 2000. That corresponds, within a few days, with his release date if his sentences remain unaltered. Accordingly, we do not propose to change the sentences which were imposed on 8th September 1999, but we order that they be served concurrently with the sentences imposed by Judge Toh.

12. Finally, we should add that none of these problems would have arisen if the Respondent had been sentenced for the two groups of offences by the same judge on the same day. There may have been reasons why that was simply not possible in this case. That is a topic which we have not investigated. But we take this opportunity to remind those responsible for bringing criminal cases to court and for listing them of the desirability of persons facing two groups of offences to be sentenced by the same judge on the same occasion.