HKSAR v. Iqbal Zahid
Court of First Instance
Magistracy Appeal No 44 of 2018
Judge Susana D’Almada Remedios
6 March, 9, 17 April 2018

Criminal sentencing — computation of sentences of imprisonment — whether (a) period of administrative detention; and (b) period in remand in relation to other offences of which defendant not convicted to be taken into account for purpose of reducing sentence — no automatic reduction as periods not covered by s.67A — exercise of discretion give credit for such periods — Criminal Procedure Ordinance (Cap.221) s.67A, 67A(1A) 

D, with a clear record at trial, was convicted of taking employment while being a person in respect of whom a removal order was in force and sentenced to 22 months and 2 weeks’ imprisonment. D appealed against sentence seeking a reduction for time spent in jail custody between 2007 and 2014 as a suspect in other offences of which he was not convicted, totalling 148 days (judicial detention) or time spent in administrative detention up to 9 May 2008, totalling 182 days.

Held, allowing the appeal by reducing the sentence by 148 days, that:

1) The periods of administrative or judicial detention would not be automatically reduced from D’s sentence as they were not covered by s.67A of the CPO. D’s administrative detention was before 9 May 2008 and, as it was not connected to the present offence, no deduction could be made under s.67A(1A)(b). Further, D’s judicial detention for an offence of which he was ultimately not convicted was not connected to the sentence passed for the present offence, pursuant to s.67A (HKSAR v Eftakhar [2015] 5 HKC 427 applied). (See paras.26–27, 30.)

2) Notwithstanding, a court had a discretion to give credit for time spent by a defendant in custody which would not otherwise be reduced under s.67A when sentencing Here, there was no good reason to take into account D’s administrative detention for this purpose (HKSAR v Khan Aftab (HCMA 34/2015, [2015] HKEC 351), HKSAR v Bogoda (HCMA 663/210, [2010] HKEC 1821), HKSAR v Lee Kwan Yee [2004] 1 HKC 462, HKSAR v Eftakhar [2015] 5 HKC 427, HKSAR v Cheung Lai Sing Dickson (CACC 137/2003, [2003] HKEC 1142), HKSAR v Ho Kwok Ho [2006] 4 HKLRD 365 applied). (See paras.31–32.)

3) However, given the very unique circumstances, it would be unjust to D if the Court shut its eyes to the “extra time” spent in judicial detention which was not short and ended with his release without conviction. Accordingly, his sentence was reduced by this “loss of time” of 148 days (HKSAR v Cheung Lai Sing Dickson (CACC 137/2003, [2003] HKEC 1142) applied). (See paras.39–40.)

Appeal

This was an appeal against sentence by the third defendant at trial for taking employment while being a person in respect of whom a removal order is in force imposed by Mr Colin Wong in the Magistrates’ Court. The facts are set out in the judgment.

Jurisdictions: 

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