R v Joseph Tsang

For an extradited person from a category 2 territory, the Crown Court may deal with a pre-extradition offence only within the limits imposed by section 150 of the Extradition Act 2003. A passing reference in the extradition request to an arrest warrant, where extraneous to the offences for which extradition was sought, does not disclose a failure-to-surrender offence as a lesser offence. A conviction entered without jurisdiction is a nullity. Where section 240A of the Criminal Justice Act 2003 applies, the sentencing court must direct that qualifying curfew credit counts as time served. Failure to give that mandatory direction can be corrected on appeal.

The appellant was convicted at Oxford Crown Court after two trials of sexual offences against two teenage girls and of making indecent photographs of children. After absconding to Hong Kong in breach of bail, he was convicted and sentenced in his absence for failing to surrender. His total sentence was 15 years and six months. An earlier appeal corrected sentencing errors but left the total sentence unchanged.

Following a reference by the Criminal Cases Review Commission, the court considered the Crown Court’s jurisdiction to deal with the Bail Act offence after extradition, possible credit for time spent in custody in Hong Kong, and credit for time spent on bail subject to a qualifying curfew.

1. The Bail Act conviction. The appeal against conviction was allowed. Hong Kong was a category 2 territory for the purposes of the Extradition Act 2003. Under section 150, an extradited person could be dealt with in the United Kingdom for a pre-extradition offence only if it was the offence for which extradition occurred, a lesser offence disclosed by the information supplied to the requesting territory, or an offence for which consent had been given. The parties accepted, and the court agreed, that the case did not fall within the first or third gateways.
2. The request’s reference to the arrest warrant was merely passing and wholly extraneous to the offences for which extradition had been sought. On the authority of R v Sedden [2009] 2 Cr App R 9 and R v Shepherd [2019] 2 Cr App R 26, the Bail Act offence could not be treated as a lesser offence disclosed by the extradition information. The Crown Court therefore had no power to deal with it. The purported conviction was a nullity and was set aside.
3. The issue concerning credit for time spent in Hong Kong fell away with the quashing of that conviction, and the court expressed no view on it.
4. Section 240A(2) of the Criminal Justice Act 2003 required the sentencing court to direct that the qualifying credit period count as time served. The relevant period was 100 days. The sentencing judge had failed to give the mandatory direction. The sentence appeal was therefore allowed to that extent, and the court directed that 100 days count towards the sentence. The resulting total sentence was 15 years, with the 100-day credit applied.

• Oxford Crown Court: the appellant was convicted after two trials and sentenced to 15 years’ imprisonment for the sexual offences, followed by six months’ imprisonment for failing to surrender.
• Court of Appeal (Criminal Division): an earlier sentence appeal corrected errors in the sentence pronouncements but left the total term unchanged.
• Court of Appeal (Criminal Division) [2023] EWCA Crim 350: on a Criminal Cases Review Commission reference, the Bail Act conviction was set aside as a nullity and the sentence was reduced to 15 years by directing that 100 days count towards it.