SECRETARY FOR JUSTICE v. CHEN RUNLIANG

CAAR 4/2004

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO.4 OF 2004

(ON APPEAL FROM dccc 475 of 2004)

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J U D G M E N T

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

Background

1.  On 30 June 2004, leave was granted to the Secretary for Justice (the applicant) by Ma CJHC for the sentence imposed on the respondent to be reviewed pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221.

2.  The point which is involved is a short one.  On 3 June 2004, the respondent pleaded guilty in the District Court to a charge of burglary in commercial premises and was sentenced by Judge Gill, having reduced the starting point by one-third, to a term of imprisonment which was ordered to run for one year and eight months from 1 March 2004.

The application

3.  The present application is made on the basis that the sentence was one which was not authorised by law.  It was submitted by Mr Zervos, SC, on behalf of the applicant, that there is no power to back-date the commencement of a sentence of imprisonment.  A sentence of this kind must either run from the date it is imposed or, wholly or partly, consecutively to a sentence which is already being served.

4.  Briefly, by way of background, the respondent was arrested on 1 March 2004 for the offence of burglary which he had committed on 30 December 2003.  At the time of his arrest, he was already in custody, having been arrested on 8 January 2004 for an unrelated offence of possession of obscene articles for the purpose of publication.  He had eventually been traced for the burglary offence through the fingerprints he had left at the crime scene.  On 12 March 2004, he was convicted and sentenced to six months’ imprisonment for the ‘obscene articles’ offence.  Four days later, on 16 March 2004, the respondent was charged with burglary.

5.  When sentencing the respondent on 3 June 2004 in relation to the burglary offence, the judge said:

“10.     Before I sentence, I have to consider to what extent this sentence should overlap that which has currently been served for the previous offence of 6 months imposed on 12 March but which would have run from the date of arrest and incarceration, namely 8 January.  It seems to me the appropriate course, particularly given that this offence was committed first, would be to direct that the term to be imposed runs from the date of arrest for this matter and that is the course I shall adopt.”

6.  The Certificate of Sentence reads: “Imprisonment for One (1) Year and Eight (8) months running from 1^st March 2004”.  Thereafter, not surprisingly, the Chief Superintendent at the Lai Chi Kok Reception Centre sought clarification about the sentence the respondent should serve.

7.  It is plain, and indeed it is accepted on behalf of the respondent by Mr Dunn who did not appear in the court below, that the judge by his sentencing remarks and subsequent order had erroneously back-dated the commencement of the respondent’s sentence to 1 March 2004, some three months or so prior to the day the sentence was imposed.  This is a matter which could easily have been corrected at the time if counsel in the court below had themselves been aware of the error.  Sadly, it seems they were not.  In any event, if authority were needed, by way of examples, see: Attorney-General v Mao Ky-khoang & Ors [1994] 2 HKCLR 166; Attorney-General v Wong Man-kei, CAAR 4/1992 (unreported); and Chan Hung v Commissioner of Correctional Services, HCAL 678/2000 (unreported).

8.  What a judge is permitted to do where a defendant is already serving a sentence at the time he is due to be sentenced for another offence is provided by section 68 of the Criminal Procedure Ordinance, Cap. 221, which reads:

“Where the court sentences any person to undergo a term of imprisonment for an offence, and such person is already undergoing, or is at the same time of the court sentenced to undergo, 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 or has been so previously sentenced to undergo, as aforesaid.”

9.  As the offence relating to the possession of obscene articles was entirely separate from the burglary, it is a little difficult to understand why the judge felt the need to back-date the burglary sentence to the date when the respondent was formally arrested for that offence even if there had been a power so to do.  Normally, in such circumstances, the two sentences could be expected to have been ordered to run consecutively.  Alternatively, the sentence for burglary could, where appropriate, have been made concurrent or partially consecutive to what remained of the respondent’s sentence for the other offence.  In this case, no good reason has been suggested for the alternative course to be adopted.  The respondent was given the discount of a third to which he was entitled for his plea of guilty.  He was not entitled to any further reduction in sentence.

10.  Here, as Mr Zervos has confirmed, the period spent in custody for burglary between 1 March 2004 and 12 March 2004 pending the respondent’s sentence for possession of obscene articles,a matter of about twelve days which the judge was apparently anxious that the respondent should not lose when he imposed the ‘burglary’ sentence, was counted towards the respondent’s sentence for possessing obscene articles.  Furthermore, it seems, reading between the lines, that the judge was in fact concerned that the respondent may have lost rather more than twelve days’ time spent in custody, for administrative reasons which were not of his making, which caused him to back-date the sentence to 1 March 2004 from 3 June 2004 when he sentenced the respondent for burglary.  However, the time the respondent spent in custody between 8 January 2004 up to 7 May 2004 when he completed his earlier sentence, by virtue of section 67A(1) of the Criminal Procedure Ordinance, was counted towards the respondent’s sentence for the ‘obscene articles’ offence.   The provisions of section 67A(1) are as follows:

“(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.”

11.  After 8 May 2004, Mr Zervos has again been able to confirm with the Correctional Services Department that the respondent’s time in custody will be counted towards his sentence for burglary.

12.  In the unfortunate circumstances which have arisen, we shall, therefore, allow this application by quashing the order made by the judge in the court below that the sentence for burglary should commence on 1 March 2004.  The respondent, in the result, has lost none of the time he has spent in custody because, one way or the other for the reasons we have given, all of that time has counted towards the separate sentences imposed on him.

Conclusion

13.  Accordingly, the application is allowed and a sentence of twenty months’ imprisonment without further qualification is imposed for the burglary.