FAMV No. 300 of 2022

[2023] HKCFA 33

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 300 OF 2022 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 459 OF 2019)

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ:

1. At the hearing, this leave application was dismissed for the reasons now provided.

2. The applicant “ Fu ” was charged with trafficking in dangerous drugs and was convicted on 11 July 2018 on his plea of guilty to the lesser offence of possession. He was sentenced to imprisonment for two years, ie, 731 days. By then he had been held in custody on remand for 604 days.

3. By virtue of section 67A of the Criminal Procedure Ordinance, [1] his 731 day sentence was treated as reduced by that 604 day period, leaving a balance of 127 days. Fu sought to argue that under Rule 69(1) of the Prison Rules, [2] he was entitled to remission of one-third of the entire term of 731 days which, taking into account 14 days deducted for misconduct, he calculated as coming to 229 days’ remission. Accordingly, so he argued, he was entitled to immediate release upon pronouncement of the sentence since that 229-day period of potential remission exceeded the 127 days’ imprisonment remaining after deducting the time spent in custody on remand.

4. That argument succeeded before Campbell-Moffat J [3] but failed in the Court of Appeal. [4] Barma JA pointed out that Rule 69(1), which gave the Commissioner a discretion to grant a maximum of one-third remission, was subject to a proviso that that rule “shall not permit the reduction of the actual term to less than 31 days”. Thus, the Court of Appeal held that such remission as might be granted to Fu could not result in reducing the balance of 127 days to an “actual term” of less than 31 days, the words “actual term” meaning “remaining term”. In our view, Barma JA was plainly correct.

5. Fu had been kept in custody after sentence was initially pronounced. He was then released by Campbell-Moffat J on his habeas corpus application and was on bail pending the Superintendent’s appeal to the Court of Appeal. Applying the Court of Appeal’s construction of the rule, there remained 11 days’ imprisonment to be served by Fu after the judgment on appeal was handed down.

6. Initially, Fu sought leave to appeal to the Court of Final Appeal on two questions, the first of which involved challenging the Court of Appeal’s construction of Rule 69(1). That has however been abandoned. Leave to appeal was then sought only on Fu’s Question 2 asking whether Rule 69(1), so construed is “arbitrary and/or unconstitutional when a convicted person has to serve a further term of 31 days after being sentenced even when the o