HKSAR v. SALMAN SHAH

HCMA 86/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 86 OF 2017

(ON APPEAL FROM TMCC 2032 OF 2016)

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REASONS FOR JUDGMENT

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1.  On 3 January 2017, the appellant appeared before Deputy Magistrate LT Pang in the Tuen Mun Magistrates’ Courts along with a co‑defendant. The appellant faced five charges to which he pleaded guilty. These were as follows:

Charge 1   Using a forged identity card contrary to s7A(1) Registration of Persons Ordinance, Cap 177

Charge 2   Breach of condition of stay (overstaying) contrary to s41 Immigration Ordinance, Cap 115

Charge 3   Not applicable.  Against another defendant only and withdrawn.

Charge 4   Using a forged ID card contrary to s7A(1) Registration of Persons Ordinance, Cap 177

Charge 5   Breach of condition of stay (taking up employment) contrary to s41 Immigration Ordinance, Cap 115

Charge 6   Using a false instrument (forged recognisance) contrary to s73 Crimes Ordinance, Cap 200

2.  The facts of his offending are very simple.  The appellant, who is a Pakistani national, was in breach of his condition of stay in that he had been required to leave Hong Kong by 6 October 2012.  He had not done so.  He was arrested on 25 July 2016 for these and other offences to which I will refer later.  In respect of these offences, the appellant had overstayed (Charge 2); taken up employment as a part time construction site worker using a forged identity card on two occasions (Charges 1 and 4); taken up full time employment at the same site (Charge 5) and when investigated for the above had produced a forged Form 8 to the police (Charge 6).

3.  The appellant received the following sentences of imprisonment:

Charge 1	Using a forged identity card	15 months
Charge 2	Overstaying	3 months concurrent
Charge 3	N/A
Charge 4	Using a forged identity card	15 months concurrent
Charge 5	Taking up employment	2 months concurrent
Charge 6	Using a false instrument (forged Form 8)	15 months, 7 of which was to be served consecutively to the above.

The total sentence was therefore one of 22 months’ imprisonment.

4.  The appellant does not take issue with the correctness of the individual sentencing.  He says:

(i) That the period of detention he underwent after his arrest on 25 July 2016, when he was remanded for both STCC 5298 of 2010 (“STCC 5298”) and TMCC 2032 of 2016, (“TMCC 2032”) should count against the sentence under TMCC 2032.

(ii) That the sentence for overstaying under TMCC 2032 should have been taken into consideration with the previous sentence of overstaying under STCC 5298 and would therefore have been subsumed within the sentence for Charge 2 of TMCC 2032.

(iii) That the learned magistrate should have explained in what manner and by how much he had taken into consideration the fact that these matters should all have been dealt with at the same time and in what way his sentence had taken that into account.

Background to this appeal

5.  This appeal is connected to another set of proceedings dealt with on another occasion and by another court.  It is helpful to place it in context.

6.  The appellant originally entered Hong Kong on 5 October 2001.  He had been allowed to remain as a result of a lawful extension until 5 February 2002.  Thereafter he was overstaying.  On 25 October 2007 he was arrested for breach of condition of stay by overstaying between 6 February 2002 and 25 October 2007, and was proceeded against under STCC 5298.

7.  Before those proceedings could be dealt with, the appellant entered a CAT claim on 1 November 2007 and was released on recognisance on 16 November 2007, but was arrested on 11 June 2008 for a further breach of condition of stay by reason of his taking up employment.  He was convicted of that offence on 16 June 2008 and was sentenced to two months’ imprisonment.

8.  The appellant was arrested again for the original breach of condition of stay by overstaying between 6 February 2002 and 25 October 2007 under STCC 5298 on 7 October 2010.  That case was adjourned owing to the pending CAT claim and I presume he was given bail.  The CAT claim was dismissed on 17 July 2012 and he appealed.  On 8 August 2012 his appeal was dismissed.  He was therefore required to leave Hong Kong by 6 October 2012, which he did not do.  In the interim STCC 5298 was listed on 5 October 2012.  The appellant failed to attend.

9.  The appellant did not leave Hong Kong on 6 October 2012 and was therefore in breach of condition of stay once more for overstaying from that date onwards.

10.  On 25 July 2016, the appellant was arrested for the original breach of condition of stay proceedings under STCC 5298 and for failing to surrender on the 5 October 2012.  Separate from STCC 5298, the appellant was charged with the offences under TMCC 2032, which are before the court and from which sentence he now appeals.

11.  The appellant was remanded in custody on STCC 5298 and TMCC 2032.  STCC 5298 was dealt with on 24 August 2016.  He received a sentence of four months’ imprisonment on the charge of breach of condition of stay between 6 February 2002 and 25 October 2007 and a consecutive sentence of two months for his failure to attend on 5 October 2012.  Of his 184-day sentence, he received 61 days’ remission for good behaviour and a further 28 days reduction for his remand in custody between 27 July 2016 and 23 August 2016.  He therefore served 95 days with a technical release date of 26 November 2016.

12.  I note that the date of arrest of 25 July 2016 and day in police custody on 26 July 2016, were not counted against this sentence but that it was counted in the reduction to be given against the next set of proceedings under TMCC 2032 for which he had also been arrested on 25 July.

13.  Whilst a serving prisoner, the appellant was on remand for the offences under TMCC 2032.  From 26 November 2016 onwards he reverted from being a convicted prisoner to being on remand.  The period between 26 November 2016 and 2 January 2017 were therefore to be counted against his sentence under TMCC 2032, which was dealt with on the 3 January 2017 at which time he pleaded guilty to Charges 1, 2, 4, 5 and 6 as detailed above.

The magistrate’s approach to sentencing

14.  The learned magistrate took into account all appropriate authorities in respect of the individual charges. He distinguished between the charges.  He saw Charge 2 as separate from Charges 1, 4 and 5 but nevertheless made them concurrent to one another.  He also distinguished between those charges and Charge 6 which he felt should be consecutive.  He went on to look at the issue of totality not only on the basis of the offences before him but also on the basis of the offences under TMCC 2032, which were brought to his attention by Mr Donald. On that basis he ordered that only seven months of the 15 months ordered under Charge 6 was to run consecutively to the remaining offences.  Giving a total of 22 months’ imprisonment.

15.  The initial argument of the appellant was that the two sets of proceedings, STCC 5298 and TMCC 2032, should have been heard together and he has been prejudiced by that fact.  He maintains that the sentence he would have received in such a case would been no greater if the STCC 5298 offences had been before the court at the same time as the TMCC 2032 offences.  This argument fell away but for the avoidance of doubt I do not take the view that the failure to surrender, which earned the appellant two extra months in custody, would have been ordered to run concurrently with the other offences.  In any event, the learned magistrate made his reasoning plain at paragraph 43 of his reasons for sentence when he said:

“Mr Donald had merit in his submissions that all the charges should have been dealt with together in one single set of proceedings. I agreed that the way the defendant had been dealt with would bring him into a situation where he might be deprived of the benefit of totality.”

As a result, the magistrate reduced the time to be served consecutively under Charge 6 by some even months.  That was an 8‑month reduction overall.  Accordingly, the magistrate did take account of the STCC 5298 proceedings, gave a generous discount and explained why he had done so.

Calculation of reduction of sentence for time served pre-sentence

16.  S67A of the Criminal Procedure Ordinance, Cap 221[1] states:

“(1) The length of any sentence of imprisonment imposed on a person by a court shall be treated as reduced by any period during which he was in custody by reason only of having been committed to custody by an order of a court made in connection with any proceedings relating to the sentence or the offence for which it was passed, or with any proceedings from which those proceedings arose, but where the person was, in respect of the offence for which the sentence of imprisonment was imposed, subject to an earlier order made under-

(a)section 3 of the Probation of Offenders Ordinance (Cap 298);[2]

(b)section 36 of the Magistrates Ordinance (Cap 227)[3]; or

(c) section 109B of this Ordinance,[4]

any such period of custody falling before the earlier order was made shall be disregarded for the purposes of this section.

(1A) The length of any sentence of imprisonment imposed on a person by a court shall also be treated as reduced by any period during which he was, immediately prior to his first appearance in court in connection with any proceeding relating to the offence for which the sentence of imprisonment was imposed, in custody –

(a) of the police, Customs and Excise Department or Independent Commission Against Corruption in connection with that offence; or

(b) Under Part VII of the Immigration Ordinance (Cap 115) in connection with that offence.[5]”

17.  In R v Governor of Brockhill Prison Ex p. Evans [1997] QB 443 at p 447F Lord Bingham of Cornhill CJ reiterated the basic principle that if a defendant spends time in custody awaiting trial for a single offence, and he thereafter serves a period of imprisonment for that offence, then the term he is required to serve will be reduced by the time he has spent in custody in respect of that offence unless, during that period of pre-sentence custody, he was in custody for another unrelated offence.

18.  Lord Bingham went on to say that where a defendant spends time in custody for more than one offence and upon conviction is sentenced to consecutive terms of custody for those offences, the total period he is required to serve will be reduced by the total period he spent in custody subject once again to the proviso that all or part of that period of reduction will not be counted against the time to be served if the defendant was serving all or part of that period of pre-sentence custody serving a sentence for an unrelated offence for which he had been sentenced.  Time spent in custody in relation to any of the offences for which sentence is passed should serve to reduce the term to be served subject always to the condition that time can never be counted more than once.

Conclusion

19.  The principle that a prisoner’s release date should be beyond doubt was reiterated by Lord Bingham in R v Governor of Brockhill Prison supra.  He said, and it is trite, that the provisions governing that release must be both easy to understand and apply.  The regulations applicable to them and their application must be transparent.  I find the core principles as applicable to the issues before me today to be as follows:

(i) All periods of relevant pre-sentence custody or detention should count against the period of custody to be served upon sentence save for periods of custody wholly unrelated to the material offences and custody.

(ii) Relevant custody and detention is defined by s67A and includes custody by reason of court order and detention by the police, Customs and Excise and ICAC.

(iii) Where there is more than one offence and any period of custody to be served is concurrent or overlapping then any period of relevant pre-sentence custody or detention will be deducted from the longest or last offence to expire.

(iv) Where there is more than one relevant offence. Periods of custody should be calculated as if they were a whole and not by reference to individual sentences.  Equally, the number of days of reduction should be seen as a whole figure and not deducted from individual sentences.

(v) No period of relevant pre-sentence custody or detention will not be counted more than once.

20.  The appellant is to serve 22 months in total for the five charges which he faced under TMCC 2032.  The period of custody or detention to be deducted from that sentence is to be 40 days representing 25 and 26 July 2016 and 26 November 2016 to 2 January 2017 as confirmed by the Correctional Services Department.  All other periods of detention or custody have been credited elsewhere.

21.  The appellant has not been prejudiced by the fact that he was sentenced separately under STCC 5298 and TMCC 2032 and all relevant periods of custody or detention have been taken into account.  Accordingly, this appeal against sentence is dismissed.