LAW YUI WO v. R.

IN THE COURT OF APPEAL

1994, No.107
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.(giving the judgment of the Court):

1. On 1st March 1994, in the District Court, this Applicant pleaded guilty before Deputy Judge Muttrie to two counts of obtaining a pecuniary advantage by deception and one count of obtaining property by deception. He was sentenced on each count to concurrent terms of 3 1/2 years imprisonment.

2. These were substantial fraud which were carefully planned and executed. Counts 1 and 2 involved a total of HK$3,500,000 obtained in loans from two different banks, and in addition, a further $300,000 by way of overdraft.

3. The final count to which the Applicant pleaded guilty related to HK$2,200,000 obtained from one Leung Ping-kwan.

4. The banks were eventually able to recover their money. Leung, on the other hand, was not so fortunate, having apparently been unable to recoup any of his losses.

5. The learned Deputy Judge took five years imprisonment as his starting point, and reduced this to 3 1/2 years, to reflect the credit he gave for a guilty plea. Mr. Macrae has very realistically not tried to argue with this in principle.

6. The only point raised on behalf of the Applicant is that he was given no further reduction in sentence in respect of some of the time spent in custody pending extradition from the United States of America where the Applicant had fled following his fraudulent activities.

7. The trial Judge expressed, in his "Reasons for Sentence", a belief that the Applicant had appeared to have contested the extradition proceedings, and had then sought to appeal against the order made. As it turns out, the Applicant did not seek to appeal against the extradition order.

8. It is clear that the prison authorities in Hong Kong are not empowered to count the time spent in custody overseas awaiting extradition towards the sentence imposed for the crime itself. It has been drawn to our attention that the Court did take into account a period of nine weeks spent in custody in Australia in R. v. Chow Yung (Criminal appeal No. 139 of 1985). This sharply contrasts with R. v. Wong Hoi (Criminal Appeal No.354 of 1985) to which reference will shortly be made.

9. The English practice, following R. v. Stone (1988) 10 C.A.R.(S) 322, is that the sentencer may, in his discretion, make allowance for time spent in custody pending extradition, and this receives approval in The Attorney General v. Shamsudin (1987) H.K.L.R. at page 832. However, in R. v. Peffer (1991) Crim.L.R. 728, it was said that:

"it should not be thought by those who flee the country in the hope of evading justice that, if they are caught, and remain in custody in a foreign country for a period of time, that that time will, by any means, necessarily be considered as if it had been spent in this country, serving the sentence imposed by the English Court."

10. In R. v. Wong Hoi (above) it was the decision of this Court that, in such situations, the Applicant is to be regarded as the author of his own misfortune. In that case, as in the matter presently before us, it was necessary to extradite the offender, and the Court of Appeal held that he could not be heard to complain about the period spent in custody pending extradition proceedings. That remains the position and, if it needs to be stated again, it should be made clear that this is not generally a matter to be taken into account in the overall sentence imposed by the Judge at trial unless, in the discretion of the trial Judge, it is felt that justice demands that account should be taken of the time spent in custody outside the jurisdiction and that credit should be given for it.

11. We have now been addressed upon precise events in the United States of America which were not known to the trial Judge when sentence was passed. In summary, the Applicant was arrested on 1st February 1993 and remanded in custody until a hearing on 16th August 1993 when extradition was certified upon two charges. In this respect, an error had been made because extradition had been sought on nine charges. An amendment was requested and duly obtained, but in the result, through no fault of his own, the applicant remained in custody for approximately another six weeks whilst the error was corrected.

12. In our judgment, whether or not the trial Judge had wrongly thought that the Applicant had tried to appeal the extradition order, this was not a matter of any material significance. However, to the extent of the six weeks we are now told the Applicant remained in custody through no fault of his own, here he was not the author of his own misfortune, and, to that extent alone, we feel his sentence should be reduced.

13. In those circumstances as we indicated on 14th July 1994, we give leave to appeal against the sentence imposed and we treat the hearing as the appeal. The appeal is allowed to the extent that the sentence is reduced by six weeks.