HKSAR v. KWAN WAI HON

CACC 91/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 91 OF 2005

(ON APPEAL FROM DCCC 1258 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):

1.  I granted leave to appeal against sentence out of time on 17 June 2005 and, following this, Mr Robert K Y Lee for the respondent very responsibly indicated that the appeal would not be opposed.  The matter is set out in detail in the judgment given on 17 June 2005.

2.  In short, the appellant was serving a total term of 16 months’ imprisonment imposed on 18 October 2004 at Fanling Magistrates’ Court when, in the District Court on 8 January 2005, Deputy Judge Thomas further sentenced the appellant to 3 years and 4 months’ imprisonment for an offence of drug trafficking.  Plainly, the judge did not intend the whole of this sentence to be served consecutively to the 16 months imposed at Fanling because he stated:

“The sentence shall commence 6 months after the start of your existing sentences.”

3.  We consider that what the judge seems to have had in mind was that 6 months of the Fanling sentence should be served before the 40-month term took effect concurrently with what remained of the Fanling sentence. 

4.  All might have been well if it had not been for the fact that on 6 January 2005, 2 days before sentence was imposed in the present case, the appellant completed the equivalent of 6 out of the 16 months of his Fanling sentence having regard to the number of days he had spent in custody prior to its imposition.  This led to an enquiry on behalf of the Correctional Services Department (CSD) by Principal Officer, Mr Peter Chan Ba-tak, requesting assistance as to the date from which the District Court sentence ought to commence.  If it was to commence “6 months after the start of (the) existing sentences” as the judge had ordered this would have involved an element of backdating, albeit to the extent of only 2 days, which as Mr Chan seems to have been aware the law does not permit (See: Secretary for Justice v Chen Runliang, CAAR 4/2004).  There is, however, no reason to think that the judge knew the precise nature of the problem either then or later when his clerk replied on his behalf.

5.  The reply sent from the District Court by the judge’s clerk, Miss K H Chan, on 14 January 2005 was, so far as it is relevant, to the effect that the 40-month sentence was:

“To start after 6 months after the start of the cumulative sentences (on the Fanling charges).”

6.  This was understood by Mr Chan to mean that the 40-month sentence should commence 6 months to the day after 18 October 2004 when the Fanling magistrate imposed a 16-month sentence but, to make sure there was no misunderstanding, Mr Chan wrote back to the District Court on 1 February 2005 to enquire:

“	2.	With reference to the relevant Committal Warrants (Form 66), the start of the cumulative sentences in FLC 2423/04 and 2644/04 was on 18.10.2004.  Being such, the date after six months of these cumulative sentences should be on 18.4.2005.
	3.	As elaborated by His Honour, it is therefore comprehended that the sentence in DCCC 1258/04 is to be started on 18.4.2005.
	4.	Grateful if you could confirm the above to facilitate our calculation of the sentence for Prisoner KWAN.”

7.  The reply sent on the following day confirmed that this was a correct understanding of the judge’s order.

8.  We have now been provided with a detailed statement from Mr Chan which sets out the alternative computations concerning the appellant’s anticipated release dates depending on when the District Court sentence was intended to take effect during the currency of the Fanling sentence.  It clearly emerges that because of the adjustment to the order, which there is no reason to think the judge appreciated would make any difference, the appellant came to realise that his ‘Earliest Date of Discharge’ (EDD) would be 7 July 2007 and his ‘Latest Date of Discharge’ (LDD) would be 15 August 2008.  Previously, taking the judge’s order as at first it seemed to be intended, the appellant had understood that his EDD would be 29 March 2007 and his LDD would be 7 July 2008.  When he discovered these alterations to his anticipated release dates, the appellant immediately, although strictly by that stage out of time, put in a late application for leave to appeal limited to the point we have covered.

9.  There is no opposition to this appeal and all that we need to say at this stage, to ensure that justice is done, is that the sentence imposed in the District Court should be taken as reduced to the extent that the appellant will qualify for an EDD on 29 March 2007.  Whether or not the appellant is in fact released on that date will be entirely dependent upon factors, such as disciplinary matters, which are beyond our control. 

10.  The appeal, therefore, is allowed to the extent that the appellant’s sentence will be such as to qualify him for an Earliest Date of Discharge on 29 March 2007 subject to the terms of Rule 69 of the Prison Rules, Cap. 234A.