HKSAR v. Yeh Tsann Tarng

HCMA 1005/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1005 OF 1998

(On Appeal From ESCC 2348/1998)

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J U D G M E N T

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1. This Appellant appeals against conviction on 2 charges of Evasion of Liability by Deception contrary to section 18(B)(1)(b) of the Theft Ordinance, Cap.210. He also appeals against sentences of 18 months' imprisonment imposed in respect of each charge and ordered to run concurrently, and against a compensation order for $90,000.00 to be paid within 6 months, and, in default, 4 months' imprisonment.

2. The Appellant appeared on his own behalf, on 20th January 1999, in respect of the appeal against conviction. Having heard what he had to say, I dismissed that appeal against conviction. I was satisfied that the Magistrate could correctly find that the Appellant was guilty of the two offences.

3. The facts of the case were that the Appellant, who resided mainly in Taiwan, had drawn post-dated cheques on his closed bank account for rent owed to his landlord in the sum of $90,000.00. It should be stated at the outset that the Magistrate appeared to be under the impression in his Reasons for Sentence that he had not made any compensation order. The record showed that he had in fact ordered compensation of $90,000.00 payable in 6 months. The Magistrate forwarded Supplementary Reasons for Sentence prior to this appeal stating that he would have revoked that order if he had the power to do so. There was no enquiry by the Magistrate into Appellant's ability to pay and he did not hear defence counsel on whether a compensation order was appropriate.

4. The Respondent conceded that the Magistrate was correct in stating that a compensation order should not be made in the particular circumstances of the case and did not seek to uphold it. It was necessary to formally rescind that order and I did so bearing in mind that that was the appropriate course. The compensation order of $90,000.00 was rescinded.

5. Appellant was represented by Director of Legal Aid in his appeal against sentence. Counsel submitted that the Magistrate did not take into account sufficiently that as the Appellant was a 48-year old businessman of good character, here and in Taiwan, that it must have been completely out of character that he committed these offences. It was also submitted that the Magistrate did not take into account the fact that these were not offences of the utmost gravity. Counsel pointed out that the victim was not young or vulnerable and there were no other aggravating features. Further, Appellant was not likely to re-offend given his age and previous record.

6. The Magistrate's Reasons for Sentence are short but clear. He did treat the Appellant as a man of good character, ignoring a minor gambling conviction, and found that 18 months' imprisonment was correct after trial in respect of each offence. He did not specifically state that the sum of $90,000.00 did not indicate an offence of the first magnitude, but he was well aware of the amount of the money outstanding and his statement that he found 18 months' imprisonment was "right after trial" must have taken that sum into account.

7. It is dangerous to adopt in cases of this nature, a mathematical approach to sentence based on the amount of money which has been obtained and the Magistrate was correct not to dwell particularly on the amount. This was a blatant act by Appellant to defraud his landlord of rent he owed. The cheques issued were drawn on an account which had been closed for about 12 months.

8. The Magistrate treated the Appellant as being of good character; he was aware of his family background and took it into account. He noted that the maximum penalty in the Magistracy for this offence was 24 months' imprisonment. He bore in mind totality in respect of the offences and made the sentences concurrent.

9. Having considered the nature of the case and noted that this was conviction after trial and not on a plea, initially I did not find the sentences excessive and dismissed the appeal against sentence.

10. However when finalising my judgment I reviewed the facts and the Magistrate's Reasons for Sentence and noted that the Magistrate "found a deterrent sentence was opposite." He did not elaborate on why he considered a deterrent sentence was necessary. Counsel, in otherwise detailed submissions, did not address this point on appeal.

11. This, on reflection, did not appear to be a case where a general deterrent was needed; nor was a deterrent specific to this offender. The sentences were thus unnecessarily lengthy.

12. My judgment had not been sent to the Magistrate's clerk for entry in his record and endorsing on the conviction, as required by S.119(f) of the Magistrates Ordinance, Cap.227. I recalled the parties and advised them that I had been wrong not to allow the appeal on sentence, at least in part. I advised counsel that I did not consider myself functus officio, relying on Lau Kwok-wah and The Queen [1980] HKLR 24 which held that it is within the power of an appellate judge to make a downward revision of sentence before the original order has been perfected.

13. Mr Wesley Wong SGC, for the Respondent, helpfully referred me to a case supportive of Lau Kwok-wah, The Queen and Wong Siu-cheung Criminal Appeal No. 571/94 where the Court of Appeal, when preparing a judgment for signature, changed their original view of an application for leave to appeal and granted leave because they had revised their views in the interim.

14. Accordingly I am able to amend the decision I gave orally on 20th January 1999 and allow the appeal against sentence in part. Taking account of all matters of mitigation advanced and noting the facts of the case I consider that 8 months imprisonment on each charge would be a proper sentence.

15. To recapitulate; the appeal against conviction is dismissed; the compensation order is rescinded and the sentences of imprisonment are reduced from 18 months to 8 months, to be served concurrently.

16. I apologise to counsel for the necessity of their having to attend court on this matter a second time.