HKSAR v. CHAN TAI WAI DAVID

CACC 7/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 7 OF 2006

(ON APPEAL FROM DCCC NO. 723 OF 2005)

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REASONS FOR JUDGMENT

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Hon Woo VP (giving the reasons for judgment of the Court):

Introduction

1. The applicant was convicted on his own plea of seven charges of theft in the District Court before Judge Wright on 28 November 2005.  Upon learning that the applicant had a similar conviction in 1992, Judge Wright adjourned the hearing for the case file together with the summary of facts of that case to be produced for the consideration of sentence.

2. On 15 December 2005, the case was handled by Judge Chua (“the judge”), who sentenced the applicant for each of the seven charges to imprisonment for 4 years and 4 months, to run concurrently. 

3. The applicant has applied for leave to appeal against sentence.  After hearing submissions this morning, we dismissed the application.  Our reasons appear below.

Facts

4. The applicant is 40 years of age.

5. On three occasions in November 1991, when the applicant was under the employ of a company in Hong Kong as an accountant, he used cheques signed by two directors of the company for paying company expenses while they were abroad to pay himself.  The amounts stolen by the applicant from the company totalled over $4 million.  For those offences of theft he was sentenced by the District Court in August 1992 to imprisonment for 3 years.

6. Between May 1995 and July 1996, the applicant was employed as the manager of the accounting department of the victim company whose parent was an international company with an office also in the UK.  In October 1995, the applicant was appointed as one of the two joint signatories for the victim company in respect of cheques and telegraphic transfer application forms.  On 21 December 1995, he set up an account with a bank in the name of the parent company (“the bogus account”) by producing a business registration certificate in the name of the parent company in which he appeared as the sole proprietor.  Between November 1995 and June 1996, the applicant forged the signatures of his co-signatory on cheques or telegraphic transfer applications on seven occasions and by making use of the bogus account, stole a total of almost $5 million from the victim company.  The offences came to light when the applicant did not turn up to work in July 1996.  He disappeared for about nine years.  In 2005, he was deported from Thailand back to Hong Kong. 

7. In her Reasons for Sentence given on 15 December 2005, the judge referred to the sentences suggested in R v Trevor Clark [1998] 2 Cr App R 137, which was adopted by this Court in Secretary for Justice v Wong Kay Din, CAAR 7/1998.  She noted that the maximum sentence for theft was 10 years’ imprisonment, that there had been no repayment by the applicant of the money stolen, and that the present case was a repetition of the offences committed in 1991, to adopt a starting point of six and a half years’ imprisonment.

8. She said:

“7.   It is regrettable to see the defendant’s sojourn in prison has not prevented his greed and his gambling habit from overcoming his better judgment.  This repetition is a factor which can be taken into account in sentencing.”

9. She gave full credit to the applicant for his guilty plea by discounting the starting point by one-third, resulting in a sentence of four years and four months on each of the seven charges.  She ordered the sentences for all charges to run concurrently. 

Grounds of appeal

10. The applicant’s note in Chinese in his notice of application for leave to appeal against sentence dated 4 January 2006 is translated as follows:

“The trial judge did not take into consideration that I came back to Hong Kong on my own initiative to surrender to the police, which means that I am remorseful.  During the 9 years of time when I absconded, I could not help blaming myself and suffered great stress, which can also be regarded as part of the punishment.  I hope the Court will reduce my sentence.

When I came back to Hong Kong to surrender and face the trial, I had to leave my wife and children behind for a period of time.  The whole family had to pluck up great courage to deal with it.  My daughter is already 7 years old and my son was also born in April this year [2005].  They are very much in need of my care and support.  So for the sake of taking up my responsibility as a father and husband as soon as possible, I ask for a reduction of sentence.”

11. The applicant appeared before this Court on 6 April 2006, and the hearing was adjourned for the respondent to look into the allegation made by the applicant that he voluntarily surrendered to the authorities.  On the same day, the applicant wrote a letter in English addressed to this Court.  The passages relevant to the question of voluntary surrender and remorse are set out below:

“The sentencing judge did not take into consideration for my voluntary surrender to authorities and that remorse was shown.

It was put before the trial judge that I was deported by the Thai authorities to Hong Kong.  I thereby provide an explanation to the Court about this event.

On 4.6.2004, I was arrested by the Thai Immigration for a case of forged travel document.  Consequently, I was sentenced to 10 months imprisonment.  Following my release in April 2005, I was sent to the Thai Immigration for detention.  While entitled to get bail and freed, I decided to come back to Hong Kong for facing the current case.

In order to get back to Hong Kong, a valid travel document was needed.  I therefore contacted the Chinese Embassy in Thailand for assistance.  I was told to apply for an Entry Permit and expressed that I had an outstanding case in Hong Kong.  Personal details were sent back to the Hong Kong Immigration for verification.  My whereabouts came to light to the Hong Kong authorities.  I was really remorse and prepared to turn myself in to the authorities.

On 11.5.2005, the Entry Permit was issued by the Chinese Embassy and I bought an air-ticket to fly back to Hong Kong on 14.5.2005.  I was arrested at the airport upon arrival.

Under caution, I remained silent.  I was told by the lawyer to do this and entitled to that right.  It was by no means a sign of being without remorse.”

12. The grounds of appeal against sentence on which the applicant relies are thus his surrendering to the police after having hidden in Thailand for nine years and his family circumstances.  It does not appear that he challenges the factors that had been taken into account by the judge in sentencing when adopting the starting point of six and a half years’ imprisonment, namely, the amount involved in the theft and the fact of re-offending, both of which are plainly factors for consideration in sentencing.   We will deal with these two other matters before considering the applicant’s specified grounds of appeal.

Amount stolen

13. In Trevor Clark, Rose LJ (delivering the judgment of the English Court of Appeal) stated at 142C-D:

“… we make the following suggestions.  We stress that they are by way of guidelines only and that many factors other than the amount involved may affect sentence.  Where the amount is not small, but is less than £17,500, terms of imprisonment from the very short up to 21 months will be appropriate; cases involving sums between £17,500 and £100,000, will merit two to three years; cases involving sums between £100,000 and £250,000, will merit three to four years; cases involving between £250,000 and £1 million will merit between five and nine years; cases involving £1 million or more, will merit 10 years or more.  These terms are appropriate for contested cases.  Pleas of guilty will attract an appropriate discount.  Where the sums involved are exceptionally large, and not stolen on a single occasion, or the dishonesty is directed at more than one victim or group of victims, consecutive sentences may be called for.”

14. The offences in the present case involved $5 million and are within the bracket of £250,000 to £1 million in Trevor Clark, meriting a sentence of between 5 and 9 years.  Moreover, the number of occasions on which the applicant committed theft is an aggravating feature.

Reoffending

15. It is clear that the judge had adopted the starting point of 6½ years partly because of the applicant’s previous similar criminal record.  That is well justified.  In HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, this Court, differently constituted, explained at pp 833B-834B:

       “Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he has already served the penalty, the constant repetition of this applicant’s trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned.  The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest.

       …

       … more common example, in theft by shoplifting the courts will often impose a very moderate financial penalty for a first offender, but if such an offence is repeated, a heavier sentence is likely to be imposed for repetition.

       … the general rule that re-offending in the same or a similar way may aggravate the offence, at least so far as sentence is concerned.  This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court’s duty to protect the public on the other.”

Surrender

16. Nowhere in her Reasons for Sentence did the judge mention the applicant’s alleged voluntary surrender to the authorities.  The reason appeared in the discourse between the judge and Mr Omar, counsel assigned by the Legal Aid Department for the applicant, as shown in the transcript of proceedings, as follows:

COURT:     … Did he turn himself in to the police?

MR OMAR:   I believe he was deported back to Hong Kong.

COURT:    Yes, he was deported but did he give himself up?

MR OMAR:   He was stopped in the Immigration once he had come back to Hong Kong because I believe he was wanted.  I don’t believe he has a chance of going to the police because when he entered Immigration he has been stopped.

COURT:    Yes, but there is a way of means to do it when you have surrendered yourself.

MR OMAR:   Yes, I appreciate that.  I have been informed …

COURT:    He didn’t really surrender himself.  So it is his gambling habit.

MR OMAR:   Yes.  In fact, I’ve said on the last occasion – I said that is not an excuse for this offence but it’s the reason why he committed the offence.

17. The information above was consonant with the Summary of Facts admitted by the applicant when pleading guilty, which expressly referred to the fact of his disappearance in July 1996 and that “he was deported by Thai Authority to Hong Kong recently.” 

18. From the information now available to the court, it appears to us that the following events occurred:

(a)    The applicant was sentenced to 10 months’ imprisonment in Thailand for possession of a forged Korean passport.

(b)    He was sent to the Thai Immigration for detention upon his release from jail, which meant that he had no right to remain in Thailand and would have been put under detention by the Thai Immigration unless and until he could be deported to his place of origin.  One of the ways to avoid indefinite detention in Thailand was to ask for returning to Hong Kong.

(c)    In December 2004, the Chinese Diplomatic & Consulate Mission (“CDCM”) in Thailand was first approached by the applicant’s friend on his behalf for assistance.  The case was referred to the Hong Kong Immigration Authorities (“HKI”).  In January 2005, HKI asked CDCM to supply further personal details including the applicant’s fingerprints for verification of his identity.  On 25 April 2005, the required personal details of the applicant were sent by CDCM to HKI, together with a copy of and the reason for his detention, namely that he was awaiting repatriation.

(d)    In the course of his address to this Court this morning, the applicant accepted that he had never disclosed in written form to the Thai or Hong Kong authorities that he wished to surrender himself or that he was a wanted person in Hong Kong.

(e)    As a result of the applicant’s true identity being confirmed by the end of April 2005, HKI came to realise from their own source of information that the applicant was a “target” wanted by the police.

(f)    The Director of Immigration confirmed that the applicant had never disclosed to the Immigration authority of Hong Kong that he was “wanted” by the police and on information available to them, the applicant was regarded as a deportee from Thailand.

(g)    Ms Chan, who appeared on behalf of the respondent on 6 April 2006, had informed this Court that the applicant fled Hong Kong on 28 June 1996 for the Philippines.  He flew to Singapore on 30 June 1996 and entered Thailand by train on 1 July 1996.  His whereabouts were unknown to the Thai authorities.  On 14 May 2005, he was deported from Thailand to Hong Kong.  He was then arrested at the Hong Kong International Airport.  Under caution, he remained silent. 

19. In view of the above information and the applicant’s acceptance of the Summary of Facts, no credence can be attached to the applicant’s present assertion that he had made it known to the authorities in Thailand or Hong Kong that he wished to surrender himself. 

20. Even if, which we do not accept, the applicant surrendered himself to the Thai authorities who returned him to Hong Kong to face the charges, entitling him to some credit, as an encouragement to fugitives to surrender themselves, there are, however, limits: see R v Lam Kuen [1997] 4 HKC 429 @ 430, HKSAR v Chow Tak-fuk, CACC 428/2004 and HKSAR v Yuen Kwok-kee, CACC 336/2005.  In Sentencing in Hong Kong, 4^th Ed, the editors state at p 341:

“Encouragement cannot be given to people to abscond and then to hope that they will get a reduction in sentence if they can demonstrate that while at large they had stayed out of trouble.  As Bokhary JA explained in R v Lam Kuen Crim App 411/1995: ‘The applicant absconded which is to his discredit.  He later surrendered which is to his credit.  The two things cancelled each other out.  What the applicant gained by surrendering is an end to the anxiety of being a fugitive.  After he has served his sentence, he can begin a new life’.”

21. The wisdom of what was said by Bokhary JA (now Bokhary PJ) is evidenced by what the applicant wrote in his letter of 15 December 2005 to the District Court:

“Being a wanted person, I had no identity for the past nine years.  I had to hide away from the authorities.  Life was very difficult and painful.  I missed my family and friends but I couldn’t contact them.  I had to suffer alone.  I couldn’t stop condemning myself and nightmare occurred frequently.  My life was in total darkness.  No light and hope.”

22. We therefore come to the conclusion the applicant’s first ground of appeal regarding his alleged voluntary surrender must fail.

Family circumstances

23. The applicant’s second ground of appeal based on his family circumstances that he had married in Thailand and has two young children is not without dispute either.  In addressing Judge Wright in mitigation on 28 November 2005, the applicant’s counsel Mr Omar said:

“This defendant is aged 39.  He has received education up to university level and he has – both parents are aged 70 and 73.  He has got three sisters, one elder sister and two younger sisters.  After he left Hong Kong, in fact he got married in Thailand.  He now has a wife and a daughter aged 7.”

24. It will be noted that there was no mention of a son born in April 2005 as now alleged by the applicant. 

25. In the applicant’s signed “Declaration of identity for entry purpose” dated 20 April 2005, referred to above, while he mentioned his parents and three sisters, he did not provide any information that he had either spouse or children in Thailand.  Similarly, in his antecedent statement dated 18 November 2005 taken from him by the police, the fact that he had parents and three sisters was recorded, but he was described as “single and he is the younger son of the family.”

26. We were therefore doubtful as to the factual basis of this ground of appeal.  However, the applicant produced two photographs showing his wife and two children when addressing us this morning, which lends credence to his family status.

27. While we now accept the factual basis of this ground of appeal, nevertheless the law is clear that the hardship to an accused’s family is not a mitigating factor for serious offences such as those committed by the applicant, involving a breach of trust and the loss of millions of dollars, although one cannot help sympathising with the culprit’s wife and young children.  In R v Shipra [1988] 2 HKLR 493, 494, Cons VP said:

“… a man must appreciate, before he commits a crime, that his family will suffer if he is caught and convicted.”

28. In HKSAR v Chan Kin-chung and another [2002] 4 HKC 314, 321, Stock JA observed:

“…the adverse effect of imprisonment upon an offender’s family is not a factor normally to be taken into account.”

This Court’s view

29. We consider that the sentence of 4 years and 4 months’ imprisonment is neither wrong in principle nor manifestly excessive.  We do not accept that the applicant gave himself up in Thailand in order to come back to Hong Kong to face the charges, nor are we persuaded that such hardship that his family may suffer in consequence of his incarceration ought to inure to his benefit in respect of sentence. 

30. The applicant stole from his employer on seven occasions after he had been entrusted with the responsibility as one of the co-signatories of cheques and transfer documentation in handling the victim company’s finances.  Apart from forging signatures, he also used the fraudulent devices of obtaining a business registration of the parent company, with which he established the bogus account, to facilitate his theft.  He had committed similar offences towards his former employer in 1991, for which he was sentenced to 3 years’ imprisonment.  But he had still not learned any lesson from the experience.  Instead, he committed the present offences not long after he had left gaol.  While he committed the previous offences by filling in cheques already signed by proper signatories, he forged signatures and employed fraudulent devices to perpetrate the present offences.  Those facts and the fact that the applicant is a repeated offender make the present offences more serious.  He absconded from Hong Kong when he knew that he could not avoid the consequences of his crimes.  Nothing that he has put forward shows that the sentence passed by the judge was other than wholly appropriate.

Conclusion

31. In the circumstances, the application for leave to appeal against sentence must be dismissed.