HKSAR v. YAU CHUEN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.532
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 9th September 1998, the Applicant pleaded guilty before Deputy Judge Li to seven charges of forgery, nine charges of theft and one of deception. In total he received a sentence of two years and four months' imprisonment. The Applicant now seeks leave to appeal against his sentence.

2. His written application appeared to indicate that he took the view that his sentence was too heavy, but when asked today whether he had anything to add, it emerged for the first time that his application was really based upon a different footing. What he informed the Court was to this effect, namely, that when he appeared before the Deputy Judge, he had with him $3,400 in cash which he intended should be used as a partial repayment to the victims of his offences. For reasons which are not entirely clear, the Judge was not told about that even though the Applicant was represented in the lower court. So returning to his application, he tells us that he regrets very much what he did and now wishes that this sum of money should be applied to an order for restitution.

3. The nature of the case itself was, with commendable economy of words, described by the Deputy Judge in his Reasons for Sentence as follows :

" According to the facts as agreed by you, you had made seven applications consisting of false information in a period of about 3 months to various banks for credit cards. You then made use of all these credit cards to withdraw cash from various banks totalling $65,900 and also purchased a hi-fi set valued at $4980.

I have considered the background report by the probation officer. You have been leading a loose lifestyle and you committed the present offences purely to satisfy your financial need. There is no valid reason to treat this matter leniently.

I noted that, defendant, you have only one previous conviction in 1994 which is relatively a minor offence. I also give credit to your plea of guilty and that you are only 25 years old now.

However, this is a planned fraud on the banks committed in a period of 3 months and a total of $70,880 was involved. I consider an immediate custodial sentence is warranted. The fact that you offered to repay by instalments in 3 years cannot be of assistance to you at this late stage, as this is only a plan suggested by you."

4. Pausing there, as Mr Reading has pointed out, the question of restitution does appear to have been mentioned. But we can say once again that the Judge himself was not made aware of the cash sum that the Applicant was immediately able to offer towards restitution.

5. The Judge went on to review two authorities and took into account totality and overall criminality before saying that the forgery counts which, in common parlance can be described as credit card frauds, would have deserved a starting point of three and a half years, and giving a one-third discount, he reduced that to two years and four months' imprisonment. For the theft charges, he took 18 months as a starting point. He then reduced this to 12 months' imprisonment, to run concurrently with the sentence of two years and four months.

6. We can say straightaway that on the information before this Court, when we began to hear this application, we were in no doubt that there was no merit at all in the application. That is because the Judge, as the Applicant himself accepts, passed what was a perfectly proper sentence on the facts placed before him. We would have been minded to have ordered loss of time but for what it is that the Applicant has said to us today. He has produced in Court, from his prisoner's property, $3,400 in cash. He has undertaken, when a memo is signed in a few minutes' time, to give that money to those representing the Respondent.

7. Restitution is always a material factor in mitigation, as this Court has been at pains in the past to say. It cannot buy a person out of trouble but it can be used to reduce the sentence which would otherwise be passed. This is a small proportion of the total obtained by fraud by the Applicant, but it does add materially to the remorse that the Applicant is able to demonstrate, and we think it proper to take it into account as, for whatever reason, the trial Judge was never told about this.

8. Accordingly, we shall give leave to appeal and treating this hearing as the appeal, we propose to reduce the sentence of imprisonment from two years and four months to two years and three months. We shall further make an order that the sum of $3,400 cash is to be paid in restitution to the victims of these offences in proportion to their losses, that is pro rata. To that extent this appeal is allowed.