HKSAR v. WONG WING YAN, TIFFANY

HCMA14/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 14 OF 2008

(ON APPEAL FROM ESCC 5348 OF 2007)

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J U D G M E N T

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1. The appellant was convicted on her own plea at Eastern Magistracy on 27 November 2007 of two offences of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap. 210.  She was sentenced to six months’ imprisonment in respect of each offence.  The sentences were ordered to be served concurrently resulting in a totality of six months’ imprisonment.  She now appeals her sentence.

2. The facts of the case involved the appellant, in June 2006, falsely representing to the proprietor of a company, VIP Station Second Hand Favourites (“VIP Station”), which sold designer labelled handbags, that she worked for a particular firm, Medibeauty Limited (“Medibeauty”), specialising in beauty treatments or products, and that her firm wished to borrow some of VIP Station’s handbags for advertising purposes.

3. The proprietor of VIP Station agreed to lend the appellant two Hermes handbags, each priced at over $60,000.  The appellant, who once had, but no longer worked at Medibeauty, went to VIP Station and collected the handbags which were to be returned a few weeks later. 

4. When that period expired she still had not returned the handbags, and when contacted by staff of VIP Station she said her boss wished to purchase the bags and a price of $130,000 was agreed upon.

5. Over the next several weeks VIP Station repeatedly contacted the appellant asking for payment, and she indeed eventually paid a total of $33,000.  VIP Station continued to request payment of the balance and the appellant provided a number of cheques to VIP Station, all of which were dishonoured.   On 27 July 2006 VIP Station reported the matter to the police.  By the time of her arrest, on 1 September 2006, the appellant had apparently sold the handbags.  The proceeds of the sale were not recovered.

6. The appellant, who was unrepresented before me but who was represented at trial, has provided only handmade grounds of appeal contained in her Form 102 Notice of Appeal Against Sentence and in a letter to the court.  Effectively, she simply repeated the matters she relied upon before the magistrate in mitigation, namely that she had committed these offences out of financial desperation as she had lost her job, and that she was now remorseful for her actions.  She asks this court for a reduction in sentence which would allow her early release.  She has approximately five weeks of her sentence to serve.

7. The matters raised before me cannot reduce her sentence further.  The factor of remorse was encapsulated in the reduction of sentence she received for her pleas of guilty.  The “financial need” reason she gives for committing the offences is no mitigation. 

8. The magistrate’s imposition of individual sentences of six months’ imprisonment, so far as each offence is concerned, cannot on the facts of each offence be criticised.  He took a starting point of sentence of nine months’ imprisonment, and on the basis of the appellant’s pleas of guilty reduced that starting point to a sentence of six months’ imprisonment.  He made both sentences concurrent as they arose out of the same transaction.  The resulting sentence of six months’ imprisonment cannot be said to be excessive given that the total value placed on these handbags was about $130,000.  That value was not disputed by the appellant either at sentencing or before me.

9. But one matter does concern me.  The present offences were committed in June 2006.  From April to July 2006 the appellant had committed three other offences of attempting to obtain two Rolex watches by deception, obtaining cash by deception and the theft of a sum of cash.  She was convicted of these previous offences on 11 August 2006, in respect of the attempt to obtain watches by deception, and on 1 December 2006, in respect of her obtaining cash by deception and the theft of cash.  In other words all these offences, including the present offences, were committed in the period from April to July 2006.

10. The appellant had been sentenced to six months’ imprisonment in respect of her attempt to obtain the Rolex watches by deception.  She served that sentence and was then upon her release sentenced to 200 hours of community service in respect of her offences of obtaining cash by deception and theft of cash.  She received separate sentences because those matters had been brought separately before the court.

11. The present offences have also been brought separately before the court.  That is because, I am told, although VIP Station reported the matter to the police in late July 2006 the police investigation of this and other unrelated matters involving the appellant took some time, the appellant not being charged until November 2007.

12. Whatever the reason may have been for the appellant being charged with the present offences so late, it is obvious that all the charges relating to all these offences, including the present ones, could have either being dealt with together or in close proximity to one another.  That would have been the preferable course if it was at all practicable to do so.  That would inevitably have led to there being some overall consideration of the totality of the sentences imposed for the various offences.  Particularly it seems to me likely that, at the least, consideration of the sentences in the present case would have had to take into account the fact the appellant was serving a sentence of imprisonment in respect of her attempt to obtain the Rolex watches by deception.

13. But because of the delay in bringing the present case to court, it was dealt with separately and after the appellant had served her previous sentences.  It seems to me that so far as the present offences are concerned, the appellant lost the benefit of the totality of the present sentences being taken into account together with the previous sentences.  It seems unlikely to me that two separate sentences of six months’ imprisonment as well as 200 hours of community service would have been ordered had that not happened. 

14. Reconsidering the matters now, which I think is the proper course, I regard it fair to order a reduction of the present sentence the appellant is serving.  Accordingly I order that her present sentences of six months’ imprisonment be reduced in respect of each offence to a sentence of four months’ imprisonment.  Both sentences to be served concurrently, that is a totality of four months’ imprisonment.