HKSAR v. YAU CHI LUNG

CACC 271/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 271 OF 1998

(ON APPEAL FROM DCCC NO. 190 OF 1998)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. This applicant seeks leave to appeal against his sentence out of time. For reasons which are plain from our judgment, we consider this is a proper case in which to give leave to appeal out of time and we so do.

2. The applicant was sentenced on 28th April 1998, to imprisonment for 61/2 years on a charge of trafficking in a dangerous drug. This charge read that he, on 11th December 1997, in Sau Mau Ping Estate, had unlawfully trafficked in midazolam maleate and heroin hydrochloride. We need not go into the particulars of that charge as there is no challenge made to the propriety of the sentence of 6 1/2 years. The difficulty arose because the applicant had, on 27th January 1998, some three months before, been sentenced to imprisonment for 9 months on a charge of simple possession of dangerous drugs.

3. The trial judge, Judge Toh, when sentencing, made no mention of any sort of this previous sentence, of which three months had been served. She simply said:

"Having considered all of the relevant facts, you will go to prison for a total of 6 1/2 years."

4. There would normally have been no difficulty arising out of that sentence because it would have run from the date on which it was imposed, i.e. 28th April, and the applicant would, in effect, have been serving a concurrent sentence as regards the balance of the nine months that he had left to serve. The difficulty arises because the trial judge signed a certificate of sentence on 28th April which states: "Sole charge imprisonment for 6 1/2 years to run consecutively to the sentence he is now serving." As we have already observed, there was no mention made of the other offence or, indeed, that the sentence was to be a consecutive one at the time when the sentence was imposed in open court.

5. Section 80 of the District Court Ordinance states:

"1. The verdict and any sentence shall be delivered orally and be recorded in writing at the time of that delivery.

2. The reasons for the verdict and any sentence -

(a) shall be delivered orally;

(b) shall be reduced to writing within 21 days after the hearing or the trial,

and the reasons so reduced to writing shall be signed by the judge."

6. It seems to us clear that the certificate did not comply with s.80(1) insofar as it stated that there was an order that the sentence run consecutively. There was no such order made in open court. We are satisfied that the certificate of sentence was, therefore, a nullity as it was not in compliance with that section and has no effect. The sentence that was actually imposed was one of 6 1/2 years which runs from the date upon which it was imposed. This court will issue its own Certificate of Sentence which will so indicate. The effect of this will be that the applicant will be serving the balance of the 9 months, i.e. the amount left after 28th April 1998, concurrently with the first part of the 6 1/2 years sentence.

7. The sentence is as we have indicated and an appropriate certificate will be issued by this court.

8. The appeal is allowed.