HKSAR v. PUI KAM CHUEN

IN THE COURT OF APPEAL OF THE HIGH COURT

1996, No.564
(Criminal)

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J U D G M E N T

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Gall, J. : (Delivering the judgment of the Court)

1. The applicant was convicted after trial in the District Court on 16^th September 1996 of one charge of conspiracy to handle stolen goods and was sentenced to imprisonment for 18 months.

2. He appealed both conviction and sentence within time, and then on 17^th January 1997 abandoned his application for appeal against both conviction and sentence.

3. On 24^th January 1997, he sought leave to apply for leave to appeal out of time in respect of his sentence only. The applicant appears in person and has put forward as his only ground of appeal that he has not been given credit for a period of time in custody while awaiting trial on the matter which is the subject of this application.

4. The facts were that on the present charge he was arrested on 4^th January 1996 in respect of the matter now before us and was admitted to bail in the Magistrates Court, which bail was continued in the District Court until his conviction on this charge on 16th September 1996.

5. Whilst on bail, he was arrested on 12^th March 1996 in respect of three matters arising out of the same police operation, in respect of which he was charged and the matters were transferred to the District Court. The proceedings were split and set for trial on three separate dates. He was remanded in custody in respect of those three matters on 28^th May 1996. Each of those three trials proceeded in the District Court and he was acquitted of the first on 25^th October 1996, of the second on 25^th September 1996 and of the third on 4^th October 1996. Whilst he was in custody in respect of those three cases, his bail continued in respect of the case now before us.

6. Section 67(a) of the Criminal Procedure Ordinance, Cap.221 is of no assistance to the applicant in respect of his complaint that he ought to be given credit in respect of the sentence which he now serves for the time which he spent in custody in respect of the three District Court cases. Had the applicant, upon his remand in custody in respect of the three other District Court cases, sought a revocation of his bail in the matter now before us so that he was remanded in custody not only on those three cases but on the case presently before us, then he would have had the benefit of that time served in custody.

7. The judge in the District Court has not fallen into error as the sentence in this case was imposed prior to the acquittal of the applicant in respect of the three other District Court cases and the judge could not have known that the time spent in custody on those cases would not be taken into consideration as acquittal had not then taken place.

8. We accept that the sentencing process is not complete until matters before the Court of Appeal have been fully disposed of and that had the judge in the court below been in a position to be aware of the whole of the circumstances in respect of the custody of the applicant, he would have given some credit to the applicant for that period of time served in custody.

9. We grant the application for leave to appeal the sentence out of time. The appeal is allowed and the sentence is reduced to such period as to allow the immediate release of the applicant.