HKSAR v. CHAN KIM MAN

CACC400/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 400 OF 1998

(ON APPEAL FROM DCCC 935 & 1046 OF 1997)

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. This application comes before the court in slightly unusual circumstances. The Applicant seeks leave to appeal against sentence out of time, having been sentenced on 9th July 1998 by Judge Davies in the District Court to a total of three years' imprisonment for trafficking in heroin hydrochloride on two separate dates in June 1997. However, by the time this sentence was imposed, the Applicant was already serving eighteen months' imprisonment as the result of a conviction and sentence in Tsuen Wan Magistrates' Court on 20th February 1998 for a similar trafficking offence. In addition, two other magistrates' courts had sentenced the Applicant in March 1998 to a total of four months' imprisonment consecutive to the eighteen months he was serving. The District Court judge took these sentences into account when deciding that the Applicant would be sentenced to two years and one year consecutive for the trafficking charges respectively, but ordering that eighteen months of the sentence on the first charge should run concurrently to the term he was already serving. In effect, therefore, the Applicant was left to serve eighteen months' imprisonment rather than three years, in addition to the sentences imposed at the other courts.

2. However, the position was altered, on 26th February 1999, when the Applicant succeeded in his appeal against conviction in relation to the Tsuen Wan Magistratracy conviction (HCMA 48/99) and as a result the eighteen-month sentence was set aside.

3. The Applicant had less success with his application for leave to appeal against conviction regarding the two charges with which we are concerned in the present proceedings. This court dismissed the application (CACC 400/98) on 28th January 1999. At that time, there was no application in relation to sentence.

4. The full facts of the case with which we are concerned appear in that judgment. It suffices to say for present purposes that the Applicant and another man (D1) were arrested on 23rd August 1997 as the result of an undercover police surveillance exercise at a time when they had been observed selling drugs. It is also apparent that this case was, perhaps, unfortunate to reach the District Court as it was not so serious that it necessarily needed to be tried there.

5. The points which are taken on this application are reasonably straightforward. Mr. Fenton, on the Applicant's behalf, submitted that the Applicant has suffered what he termed "a miscarriage of justice" as the direct result of the Applicant succeeding in his appeal in HCMA 48/99. He argued that the District Court judge had meant the Applicant to serve only eighteen months of the sentence imposed because half of the three-year total was ordered to run concurrently. However, now that the Tsuen Wan conviction has been quashed, the Applicant has to do the full three years which only started to run from 9th July 1998 when sentence was imposed for these offences. He submitted that the Applicant will now have to serve a longer sentence, as the result of succeeding in the Tsuen Wan appeal, than he would have done if the Applicant had not succeeded in that appeal. This, he submitted, is because some of the time being served on the sentence which was ultimately quashed on appeal will not be counted towards the Applicant's sentence on the present matter. Mr. Fenton pointed out that the eighteen months was imposed on 20th February 1998, and that on 9th March 1998 the Applicant received a consecutive sentence at North Kowloon Magistracy of one month, followed by another three-month term consecutively imposed at a different court. The combined effect of these two terms taken on their own is that the Applicant would have been in custody between 9th March 1998 and 26th June 1998. Mr. Fenton demonstrated that the seventeen days from 20th February 1998 to 9th March 1998 and the thirteen days between 27th June 1998 and 9th July 1998 was time which will not be counted towards the Applicant's sentence because this was time spent serving the sentence which was ultimately quashed. Mr. Chan, on behalf of the Respondent, accepts that this situation is correct. In effect, therefore, one month of the period the Applicant has spent in custody could not be taken into account on his present sentence. This clearly justifies the granting of leave to proceed in the present application out of time.

6. Mr. Chan, in his very helpful argument, submitted that regard should be had to section 67A(1) of the Criminal Procedure Ordinance, Cap. 221, which stipulates that:

"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 ......"

7. He is, of course, right to remind us of that provision and also in pointing out that the provision cannot affect the position in this case. The section does not apply here because the period spent in custody as the result of the sentence imposed by another court for a different offence cannot affect the sentence imposed for the present offences. However, he very fairly conceded that the court can take account of what was said in relation to Practice Direction (1970) 54 Cr App R 208 by Lord Widgery C.J. dealing with the effect in certain circumstances of the activation of a suspended sentence. This Practice Direction was also applied in Hong Kong in HCMA 191/93. In the Practice Direction Lord Widgery C.J. said:

"Where ... after a period in custody pending appeal, the appellate court is of opinion that it would be fair in all the circumstances to take that period in custody into account, this should be done by making some approximate adjustment to the term of the suspended sentence and the court should state expressly that it had the period in custody in mind whether an adjustment has or has not been made."

8. Although we do not think that what has happened can properly be described as a "miscarriage", the plain fact remains that the Applicant may justifiably now feel a sense of grievance at having been deprived of approximately a month's liberty if some adjustment to that effect is not made. We have no doubt that we have a discretion to take the period of time in custody which he has lost into account when deciding whether or not to adjust his sentence.

9. There is, however, a second aspect to the application which concerns the merits. Mr. Fenton pointed out that the Applicant was sentenced to a term of three years' imprisonment, whereas his co-defendant (D1), for precisely the same offences, received a sentence of two years in total. The justification given by the judge for this difference is set out in his Reasons for Sentence at page 156:

"D1 approached the officer on each occasion and offered to sell him drugs and, at D1's bidding, D2 fetched the packets from the housing block nearby. After the police operation in Kwai Chung Estate had concluded, the defendants were arrested.

Both defendants have criminal records although it can be said in D1's favour that he has no previous convictions related to drugs, most being for gambling. Apparently, a number of trials arising out of this police operation have taken place at Tsuen Wan Magistracy. No one has been able to explain to me why this trial has been brought to the District Court.

Because D2 was involved in another trafficking offence arising from this operation, which resulted in his conviction after trial in February 1998 at Tsuen Wan Magistracy, and for which he was sentenced to 18 months' imprisonment, D1 has had to wait for more than one year to have this matter settled.

D1 is 41 years old, and has a son who is now 20 years old. It would not be appropriate I feel to treat him as a first offender although as mentioned he has no previous convictions for involvement in drugs.

In respect of these two offences I take a starting point for sentence after trial of 2 years, being the minimum recommended sentence after trial by the Court of Appeal in R v Lau Tak-ming for trafficking in a quantity less than 10 grammes. These were offences committed on two quite different occasions, albeit during the same police operational period.

I do not think it would be appropriate in normal circumstances to make these sentences concurrent, but bearing in mind the totality principle of sentencing and the delay in bringing this case to court, which was not D1's fault, I will impose a concurrent term in respect of the second offence. I can find no mitigation of weight other than that already mentioned."

10. The judge then passed sentence on D1 and said with regard to D2:

".... he has a large number of previous convictions for various offences including two for trafficking in dangerous drugs."

11. The judge was not to know that the Applicant's conviction for trafficking in Tsuen Wan Magistracy would be quashed and we have no doubt that, passing sentence in the light of the knowledge the judge had of the case at the time, he was right to have made some distinction between the two defendants before him. However, we have the benefit of knowing now that the Applicant was ultimately acquitted, at the successful conclusion of his appeal against conviction in the Tsuen Wan Magistracy case. We are quite sure that if the judge had known that at the time he passed sentence, he would not have made the distinction between the two defendants. The other trafficking offence which the Applicant had on his record was a very long time ago, in 1983. He had a number of drug-related offences but none of the others were in respect of trafficking. Accordingly, it seems to us that the proper and fair thing to do, without any reflection on the judge's decision in the District Court, which came at a time when the circumstances were very different, is to reduce the Applicant's sentence. In order to achieve this result, we propose to make the sentences that he is serving concurrent to each other, and also we propose to take into account the loss of time in custody which is due to the quashing of the Tsuen Wan Magistracy conviction.

12. In the result, we give leave to appeal. We treat the hearing as the appeal and allow the appeal to the extent that the sentence on charge 1 is reduced from two years to twenty-three months, and the twelve-month sentence on charge 2 is left unaltered but made concurrent to the sentence on charge 1. The result, therefore, is that the total sentence is reduced from three years to twenty-three months' imprisonment.