HKSAR v. EFTAKHAR BEG

HCMA 262/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 262 OF 2015

(ON APPEAL FROM STCC NO 807 OF 2015)

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J U D G M E N T

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Introduction

1.  This appeal against sentence first came before me on 2 June 2015 when the appellant appeared in person.  During the course of the hearing a question of law arose as to a convicted person’s entitlement to have administrative detention previously served deducted from a sentence of a term of imprisonment imposed for the offence on which he was convicted, irrespective of whether or not the administrative detention was in connection with that offence for which he was to be sentenced. 

2.  The appeal was adjourned and I directed that legal aid be granted to the appellant when legal argument was to be heard on this issue at the adjourned hearing.  Mr Andy Hung of counsel filed written submissions on behalf of the appellant to address the issue.  However, in the meantime, the appellant filed an application to abandon his appeal.  At the adjourned hearing, I accordingly granted the application but I was nevertheless addressed and assisted by Mr Hung on the issue.  I said I would hand down my reasons addressing the issue in respect of this appeal which I now do. 

Procedural background

3.  The appellant was one of four defendants (the 2^nd defendant) who appeared before Ms Cheung Kit Yee, a Magistrate sitting at Shatin Magistracy, on 20 March 2015, having pleaded guilty to a single offence of taking employment while being a person in respect of whom a removal order is in force, contrary to section 38AA (1)(a) and section 38AA (2) of the Immigration Ordinance Cap 115. 

4.  The Magistrate sentenced the appellant to a term of imprisonment of 16 months minus 58 days.  The 58 days represented the period the appellant had spent in administrative detention in 2012.  This was a period of detention that was not connected with the offence for which he was convicted. 

5.  The appellant made application to the Magistrate to review the sentence and to take into account further periods of administrative detention which on 27 April 2015 she refused. 

Appeal grounds

6.  The appellant appealed his sentence on the sole ground that the Magistrate was wrong in refusing to reduce his sentence by additional periods of 58 days and 20 days that were times he spent in administrative detention in 2007 and 2010 respectively.  This was the basis of his appeal in his written submission accompanying his notice of appeal against sentence dated 24 April 2015. He later submitted a handwritten letter to the Court dated 1 June 2015 requesting that his sentence be reduced by the periods of administrative detention he served in 2010 and 2012.

7.  I make mention of what the appellant was seeking by way of reduction to the sentence because during the course of the first hearing it emerged that the appellant had on previous occasions, when sentenced for other immigration offences for which he was convicted, had taken into account the administrative detention periods he sought to be deducted from the sentence imposed in this case.  In fact, it transpired that one of the periods of administrative detention had been taken into account twice by the courts in two separate cases.  I will have more to say about this later in my judgment.

Case background

8.  The background facts to this case are fairly straightforward.  On 17 March 2015, the appellant was apprehended working at a construction site with the other three defendants.  This was contrary to the prohibition to work under the removal order that was in force against him. 

9.  The appellant is 45 years of age and a national of Pakistan.  He entered Hong Kong on 27 August 2005 and was permitted to remain as a visitor until 10 September 2005.  In mitigation on behalf of the appellant, it was submitted that sometime in 2005 he made an application as a torture claimant and that he was still awaiting the outcome of his claim.  It was also submitted that he worked to support his family of seven children in Pakistan. 

10.  I should point out that I was informed that the appellant made a torture claim on 16 April 2007 which he later withdrew on 29 December 2012.  He then renewed his claim on 21 March 2014 which is still under consideration. 

11.  In the agreed facts, it was stated that a removal order was issued against him on 11 August 2010.  It was later served on him on 16 August 2010 and remained in force against him.  On 16 February 2012 the appellant was arrested by the police and after legal proceedings he was handed over to the Immigration Department on 16 October 2012 and kept under administrative detention until 12 December 2012 when he was released on recognizance.  He had been detained for 58 days. 

12.  The next time the appellant came to the attention of the authorities was when he was before the court in relation to this offence.

Appellant’s prior convictions and sentences

13.  The appellant has three prior convictions.  He had been convicted of breach of condition of stay, contrary to section 41 of the Immigration Ordinance on two separate occasions for which he was sentenced to 1 month imprisonment on 11 January 2008 and to 6 weeks’ imprisonment on 16 July 2010 respectively, and of taking employment while being a person in respect of whom a removal order is in force, contrary to section 38AA(1)(b) and section 38AA (2) of the Immigration Ordinance for which he was sentenced to 12 months’ imprisonment on 20 February 2012.

14.  I was informed by Ms Mickey Fung, for the respondent, that the appellant was placed in administrative detention for 57 days from 13 February to 10 April 2007, for 1 day on 4 February 2008 and for 20 days from 14 August to 2 September 2010.  However, it only became clear in the course of the first hearing that these periods of administrative detention had previously been taken into account by the courts when the appellant was sentenced for other immigration offences. 

15.  The following facts emerged from the records of the appellant’s previous court appearances. 

16.  On the conviction of the first offence of breach of condition of stay, on 10 January 2008, the Magistrate adopted a starting point of three months’ imprisonment which he reduced to 1 month imprisonment by taking into account the previous two months of administrative detention, that is, the period from 13 February to 10 April 2007.  

17.  On the conviction of the third offence of taking employment while being a person in respect of whom a removal order is in force, on 20 February 2012, the Magistrate adopted a starting point of 15 months’ imprisonment which she reduced to 12 months’ imprisonment by taking into account 2 ½ months of administrative detention which he rounded off to 3 months.  This seems to have taken into account the 57 days in 2007 which had already been taken into account in the sentence on the first conviction, the one day in 2008 and the 20 days in 2010.  This is something that would have been known to the appellant as the records to hand show that the calculation of the appellant’s sentence on each of these occasions was explained by the Magistrate.

18.  The appellant claimed at the first hearing that he was not aware that the previous periods of administrative detention had been taken into account when he was sentenced for the other offences.  I am unable to accept this explanation.  On each of the two previous occasions the summary of facts that he agreed to on his plea of guilty included statements as to the periods of administrative detention that he had served.  Furthermore, it is clear that when the appellant was sentenced on each of those occasions the relevant magistrate explained in his or her reasons that the sentence imposed took into account the periods of administrative detention.  The last occasion when he was before the court on 20 February 2012, it was stated in the summary of facts that he had been administratively detained for 57 days 2007, 1 day in 2008 and 20 days in 2010.

Taking into account administrative detention

19.  The question that needs to be addressed is how did it occur that the appellant had a single period of administrative detention deducted twice in relation to two separate immigration offences and why was the Magistrate when she conducted the review application and this Court prior to the appeal hearing not informed that the periods of administrative detention had already been taken into account.  

20.  A sentencing court when exercising its discretion to make a reduction to a sentence in these circumstances should be fully informed about the matter in order to impose a sentence on a proper basis. 

Appellant’s sentence

21.  The Magistrate when sentencing the defendant applied the sentencing guideline case of HKSAR v Usman Butt & Ors [2010] 5 HKLRD 452 where the sentence for this offence upon a plea of guilty is 15 months’ imprisonment.  As a result of the appellant’s previous conviction for a similar offence, the Magistrate adopted a slightly higher starting point of 24 months’ imprisonment which she reduced to 16 months’ imprisonment for his guilty plea.  She also deducted from the sentence 58 days for the period he was under administrative detention. 

22.  At the review hearing of the sentence before the Magistrate on 22 April 2015, the appellant asked the Magistrate to deduct additional detention periods in 2007 and 2010 from his current sentence.  The Magistrate in dismissing the appellant’s review application refused to make any further deduction as she considered the other periods of detention to be too remote in time to the current offence to justify a further reduction to the sentence. 

23.  For the discussion to follow, I set out the Magistrate’s actual reasons for the sentence she imposed on the appellant and her refusal of his application to review the sentence.  She said as to the sentence:

“8. The second defendant had one previous similar conviction record. Therefore, I adopted a higher starting point in his case. I adopted 24 months as the starting point and reduced it to 16 months for his guilty plea. Since he was detained administratively for 58 days, that period of detention was deducted from the sentence. The sentence imposed on him is therefore imprisonment for 16 months -58 days.”

24.  She said as to the review of sentence:

“9. The second defendant applied for review of sentence on the basis that he wished the court to take into account the administrative detention periods in February 2007 and April 2010.

10. The second defendant did not complain about the starting point. I adopted. He only wished the court to deduct the detention periods in 2007 and 2010 from his current sentence. Since the detention period which was closest to the time of the present offence had been deducted from the sentence, I did not consider the second defendant was entitled to further deduction for the detentions in 2007 and 2010.  I therefore refused his application for review and upheld the sentence I imposed on him previously.”

25.  As noted there was no complaint by the appellant about the starting point of 24 months’ imprisonment that was imposed by the Magistrate.  He has limited his sentence appeal to the refusal by the Magistrate to reduce his sentence by the further periods of administrative detention in 2007 and 2010 which he later changed to periods in 2010 and 2012.

Section 67A

26.  In examining this issue a necessary starting point is section 67A of the Criminal Procedure Ordinance, Cap 221, which deals with the computation of sentences of imprisonment.  See Ma Zhu Jiang v Secretary for Justice [2008] 6 HKC 464. 

27.  So far as material section 67A reads:

“(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);

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

(c) section 109B of this Ordinance,

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 of 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) In this section “court” (法庭) includes the District Court and a magistrate.”

28.  In cases involving administrative detention for an immigration matter, it needs to be understood that Part VII of the Immigration Ordinance provides various powers of detention of a person that can be exercised for inquiry in relation to the purposes stipulated under the Ordinance.

Sentencing approach

29.  A Magistrate’s power of sentencing comes from the Magistrates Ordinance, Cap 227, and numerous other related provisions in other statutes as well as a body of case law.  

30.  The issue in this appeal is whether the Magistrate has acted correctly within her discretion in declining to deduct from the sentence the other two occasions when time was spent by the appellant in administrative detention. 

31.  It appears the Magistrate may not have relied upon subsection 67A(1A) to reduce the sentence she imposed by 58 days.  Under this subsection, a sentence of imprisonment imposed by a court can be reduced by the period during which a person was in custody in connection with the offence immediately prior to his first appearance in court.  This specifically includes a period in custody under Part VII of the Immigration Ordinance.  There are the dual requirements under this section on which a court needs to be satisfied before it can reduce a sentence by a period in custody.  First, that the period in custody was in connection with the offence on which the defendant was sentenced, and secondly, that the period in custody was immediately prior to his first appearance in court for such offence.  This highlights the need to satisfy both nexus and proximity of the period in custody with the sentence to be imposed in relation to the offence that the court is then concerned with. 

32.  I am informed that the administrative detention of 57 days in 2007 and 20 days in 2010 were pursuant to section 32 (3A) of the Immigration Ordinance, where a person in respect of whom a removal order is in force may be detained pending his removal from Hong Kong, and of 1 day in 2008 was pursuant to section 32 (2A)(c) of the same Ordinance where a person may be detained pending the decision of whether or not a removal order should be made. It would appear that the detention of 57 days from February to April in 2007 had no connection with the breach of condition of stay for which he was convicted and sentenced on 10 January 2008.  That offence occurred on 20 September 2007 and the period of detention related to a previous arrest by the police on 13 February 2007 which resulted in him being put on recognizance on 10 April 2007.  Nevertheless, he had this period of detention deducted from his sentence.  He also had this period of detention deducted from his sentence on his conviction for the offence on 20 February 2012 where he was apprehended by the police on 16 February 2012 working contrary to the recognizance.  This period of detention as well as the one day in February 2008 and the 20 days September 2010 had nothing to do with this offence.  Nevertheless, the combined periods of detention of 78 days was rounded off to 3 months and deducted from the sentence in that case.

33.  It would seem therefore there was no basis to take into account the periods of detention under section 67A(1A), given the preconditions that need to be satisfied.  This would also apply to the present case.  So it comes down to whether a sentencing court outside section 67A has discretion to take into account periods of detention when imposing a custodial sentence and if it can on what basis, if any. 

Sentencing discretion

34.  Deputy High Court Judge S. D’Almada Remedios sought to address the issue in HKSAR v Khan Aftab, HCMA 34/2015, 2 March 2015, unreported, where she referred to several cases where it was acknowledged that the court has discretion to deduct from a sentence time spent by a defendant in custody.  The cases she mentioned were HKSAR v Bogoda, HCMA 663/210 and the Court of Appeal decision of HKSAR v Lee Kwan Yee & Anor [2004] 1 HKC 462.  She stated at paragraphs 16 and 17:

“16. In HKSAR v Bogoda the court noted that the sentencing court has a discretion to give credit to the time spent by a the defendant in detention to which section 67A(1A) of the CPO does not apply such as giving credit to a the defendant’s detention outside Hong Kong. In HKSAR v Lee Kwan Yee & Anor the Court of Appeal set out the relevant principles in exercising the discretion to take account of time spent by a the defendant in custody outside Hong Kong (to which section 67A of the CPO does not apply)

‘5. … It is therefore a matter of discretion whether it should be taken into account or not, that discretion to be exercised in light of the relevant circumstances.

6. By way of guidance as to the exercise of that discretion, in R v Law Yui Wo [1994] 2 HKCLR 204, this court held that time spent in custody in a foreign jurisdiction was not generally a matter to be taken into account unless, in the discretion of the judge, it was felt that justice demanded that account should be taken of it. There is not therefore a presumption that ordinarily credit must be give.’

17. It is apparent that the courts recognise a discretion to give credit to time spent by a defendant in custody outside Hong Kong or in administrative detention because both periods do not fall within the ambit of section 67A of the CPO.  Ultimately, the giving of credit to time spent by a defendant in custody which would not otherwise be regarded or reduced under the provisions of section 67A remains only as a discretion and is not automatic.”

35.  The case of Lee Kwan Yee was concerned with the situation where the defendant had served time in custody in a foreign jurisdiction but in relation to the offence for which he was to be sentenced. The situation in this and similar cases is somewhat different. 

36.  The issue of the court’s sentencing discretion was addressed in HKSAR v Cheung Lai Sing, Dickson, CACC 137/2003, 11 September 2003, [2003] HKEC 1142.  In the unusual circumstances in that case the court was concerned with two related sets of proceedings against the applicant which resulted in time previously served not being taken into account which would have been if the two sets of the proceedings had been dealt with together.  The court observed that if they had been dealt with together the effect of section 67A would have been entirely different.  The court intervened and ordered a sentence to address what it described as an “obvious injustice” and explained:

“20. Having observed that there is merit in the arguments placed before us, we are satisfied that this is a proper case in which to intervene because of the unfairness which would undoubtedly be occasioned to the Applicant if we were not to do so. Similarly, in R v Burnley Magistrates’ Court ex parte Halstead [1990] 12 Cr App R (S) 468, in judicial review proceedings in the English Divisional Court, it was shown that the Magistrates’ Court had intended that the applicant should only serve fourteen days’ imprisonment. However, a sentence to that effect added considerably to her existing term of detention in a young offender institution, because the applicant’s remission entitlement was changed from a half to one third, a difference of seventy-four days. Bingham LJ said (at page 471):

‘The ordinary rule undoubtedly is that questions of remission, like questions of parole, should be put out of the sentencer’s mind. The rationale of the rule is clear and is rooted in fairness to the defendant, who may not earn remission. The position is plain if one considers an example. Suppose the court considered two years’ actual custody to be the appropriate penalty and accordingly imposed a sentence of three years so that the defendant with remission of one third, namely one year, served that period. No practical inquiry would be caused to the defendant if he or she in face earned full remission; but if he or she did not, and indeed earned no remission, the defendant would serve three years. The defendant would be then serving one year beyond what the court considered the appropriate penalty, not for the offence giving rise to the sentence, because that was thought worthy of two years’ actual custody only, but because the defendant did not conduct himself or herself in prison so as to earn full remission. That would plainly be unjust and contrary to principle.

It would, however, be equally unjust if a rule formulated for the benefit of defendants were to be indiscriminatingly applied even where it worked to their disadvantage. Such would be the effect here if the court were obliged to shut its eyes to the practical consequences of a consecutive 14-day sentence under the Prison Rules, publicly promulgated for the better administration of prisons.

The Court of Appeal, Criminal Division rightly declined to shut its eyes in Cullen (CA March 22, 1989) and the court regularly reduced sentences where a defendant has effectively lost his or her liberty awaiting trial but in circumstances where that period cannot for any reason be counted against the sentence imposed.’ ”

37.  A court’s sentencing discretion was also discussed in HKSAR v Ho Kwok Ho & Anor [2006] 4 HKLRD 365 where previous periods in custody in respect of other unconnected offences were taken into account. 

38.  In light of the above, a court has a wide discretion when exercising its sentencing jurisdiction and may in appropriate circumstances address any issue of unfairness or injustice when determining a just and appropriate sentence in a particular case.  However, a sentencing court’s discretion must be exercised judicially and upon correct principles. 

Conclusion

39.  Even though the appellant has abandoned his appeal, the Magistrate was correct in my view to decline to reduce his sentence for the reasons that I have given. 

40.  In future, magistrates when dealing with cases of this type should be appropriately informed of the correct status of any period of administrative detention and whether, in particular, it has been previously taken into account by the courts for any previous sentence imposed on the defendant.  The magistrate is then in a better position to address whether any period of administrative detention can or should be reduced from a custodial sentence imposed under section 67A(1A), and if not, whether under the court’s sentencing discretion, the period in custody which has not been previously taken into account in the reduction of a sentence, should nevertheless be reduced from the custodial sentence imposed in order to address any injustice or unfairness to the defendant.