THE QUEEN v. YIP MUK-KAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 957 OF 1988

______________

______________

J U D G M E N T

______________

1. The appellant was convicted on his plea of guilty of theft and was sentenced to nine months imprisonment. He now appeals against that sentence.

2. The facts of the case were that in his capacity as a cartage contractor he had been engaged to receive 34 cartons of silk from a vessel moored at the Yaumati typhoon shelter and to deliver them elsewhere. By mistake, coolies loaded 51 cartons from the vessel on to the appellant's vehicle. However, it was not until he had arrived at the destination at which he was to make delivery that he became aware that he had received 17 cartons too many. Having discovered that a mistake had been made, he there and then decided to take advantage of the situation by retaining the extra cartons of silk.

3. A week later he sold them for $50,000 although their actual value was $219,000. Four months later he was arrested and none of the proceeds of his sale of the stolen cartons of silk was recovered. The Magistrate took the view that the offence was too serious and the value of the goods too high to justify the imposition of a suspended sentence.

4. Mr. Alderdice, who appeared on behalf of the appellant at the hearing of this appeal, submitted that, in the light of the appellant's clear record, his favourable probation report and the virtual certainty that his business would collapse if he were to go to prison the sentence imposed was manifestly excessive and wrong in principle.

5. At the hearing before the Magistrate the appellant was represented by another counsel who proposed that the appellant's brother would make restitution by an immediate payment of $40,000 and ten instalments each of. $18,900 provided the court imposed a non custodial sentence. The Magistrate rejected the offer and stated that restitution was a matter for civil proceedings.

6. It was wholly improper for counsel to put such a proposal to the court. Defendants may not bargain with the courts with a view to buying themselves out of a prison sentence. In the Queen v. Kwok Lai-ling Criminal Appeal 253 of 1988 the Court of Appeal had this to say about restitution and offers to make restitution:

"...  we do not consider that the judge was under any obligation to take [an offer made before sentencing date to make restitution] into consideration for the purposes of sentencing. The significant fact was that restitution had not been made. A mere promise to make restitution may be broken as easily as it is made. However, actual rest restitution made voluntarily before criminal proceedings have commenced, or while they are in their earliest stages, may have some relevance to sentencing as evidence of remorse. On the other hand, where it appears to have been made merely in the hope of obtaining a reduction in sentence, it can no longer be seen in that light. The Courts do not make bargains with the convicted which have the effect of allowing them to buy themselves out of the penalty for their crimes."

7. In the present case no explanation was given as to disposal of the proceeds of the sale of the stolen cartons of silk, nor, although the appellant's average monthly income is $30,000, did he make any attempt personally to reimburse the victim.

8. Mr. Alderdice also submitted that the appellant had acted impulsively without the slightest element of premeditation and that an immediate custodial sentence was too harsh a penalty for an isolated, foolish and impetuous act of greed.

9. It is true that this was not a planned theft; the appellant had taken advantage of an opportunity that had unexpectedly been presented to him. But what he did subsequently, while it was not too late to rectify his decision to keep the silk, was to set about disposing of it. It took him a week to find buyer. There was therefore adequate time for him to reflect on the significance and the consequences of his action and to return the silk to its rightful owner. To this extent his behaviour cannot properly be described as impulsive.

10. In my view the Magistrate did not err in imposing an immediate custodial sentence and, were it not for subsequent events, I would dismiss this appeal.

11. During the course of the present hearing I was informed by counsel that the appeal had originally come before another judge, but had been adjourned in order to enable the appellant to attempt to raise funds to make restitution. The appellant has taken advantage of the opportunity afforded to him and has now made restitution in full to the victim.

12. Althugh the judge did not actually tell the appellant that if he succeeded in making restitution his appeal would receive favourable consideration, the very adjournment of the hearing to enable him to do so necessarily gave rise to that unmistakable implication. With the greatest of respect to the judge this implicit bargain should never have been struck.

13. The fact is, however, that the appellant has carried out his part of a bargain sanctioned by a court. In my view it would be wrong and would give rise to a justified sense of grievance if the appellant's reasonable expectation that his appeal would receive favourable consideration were not fulfilled.

14. Accordingly I have come to the conclusion that I must allow this, appeal. The sentence of 9 months, immediate imprisonment is quashed. In substitution for that sentence there will be a sentence of 9 months imprisonment suspended for two years.