THE QUEEN v. LI YUK CHING

Headnote

Suspended sentence - activation when fresh offence committed towards end of period of suspension - there is no principle that a suspended sentence should not be activated or activated for a lesser term because fresh offence is committed towards end of period of suspension.

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J U D G M E N T

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Power, J.A.:

1. The applicant seeks leave to appeal against the activation by Judge Cameron on 11th August 1989 of a suspended sentence of 18 months imprisonment which was ordered to run consecutively to a term of 18 months imprisonment imposed by another court in relation to offences committed within the period of the suspension.

2. The offences which attracted the suspended sentence took place from 24th July 1984 to 17th August 1984 and comprised one charge of theft, three charges of obtaining property by deception and seven charges of evasion of liability by deception. The offences involved an amount of $102,901 of which the defendant repaid all except $36,901. The offences committed within the period of suspension were dealt with after pleas of guilty in South Kowloon Magistracy. They comprised 8 charges of theft and 7 charges of false accounting which were committed between 15th December 1987 and 5th January 1988 and involved an amount of $63,090 of which none has been repaid.

3. Both sets of offences involved the misappropriation of money paid to the applicant when working in a travel agency.

4. The Holly Travel Service, in which the applicant was a partner, was the agency involved in the first set of offences and the United Travel Services, of which she was an employee, was involved in the second set of offences.

5. Describing the circumstances in which he suspended the original sentence, Judge Cameron said:

"In view of the facts that the defendant had a clear record, had pleaded guilty and appeared to be making a serious attempt to make full restitution and having regard also to the fact that the difficulties she found herself in resulted it seemed from her infatuation with a man upon whom she lavished expensive gifts I imposed a sentence of 18 months imprisonment on each charge all concurrent and suspended for 2 years. The Defendant's liability under Section 109C of the Criminal Procedure Ordinance Cap.221 was explained to her. I also ordered the Defendant to pay into Court the sum of $4,000 per month commencing 28th February 1986 with subsequent payment on or before the last day of each succeeding month until the balance of $52,901 had been repaid.

    The Defendant did not make the first payment of $4,000 until 12th March 1986. 3 further payments of $4,000 were made on 1st April 1986, 30th April 1986 and 30th May 1986. Payments then stopped and attempts to trace the Defendant met with no success. The sum of $36,901 is still outstanding."

6. In the later set of offences, except for one of the offences of theft, the offences of false accounting and theft went hand in hand. In each case the applicant represented to the company for which she was working that she had received far less from a customer than had actually been handed over. In the single case of theft she simply kept $22,050 belonging to the travel company. It was, in our view, not surprising that she received an immediate custodial sentence of 18 months on the 12th June 1989.

7. This court heard argument from Mr. McCoy on 6th March 1990 and resumed on 23rd March to allow him to address us further on the case of R. v. Fitton (1989) Crim.L.R. 914 which had come to our attention after the first hearing.

8. On the resumed date also listed before us was another appeal by the applicant. This was against sentences on 7 charges of theft imposed by Judge Corcoran on 17th November 1989. She was sentenced to one year on each charge. Those sentences were ordered to run concurrently but to be consecutive to the sentences totally 3 years which she was then serving. The offences took place between December 1988 and May 1989 and involved the theft of a total of $171,000 from her employer the Trans-Asia Travel Service Co. Leave was given to abandon this appeal.

9. The appeal against the activation of the suspended sentence was, however, pursued.

10. Mr. McCoy makes no suggestion that this sentence was not appropriate nor does he suggest that the original suspended sentence of 18 months was inappropriate. What he argues, however, is that when the suspended sentence was activated it should not have been made consecutive for the full period of 18 months.

11. Judge Cameron when so ordering said:

"I ordered that the suspended sentences I had imposed on 27th January 1986 should take effect with the original term unaltered i.e. 18 months imprisonment and I further ordered that such sentence was to commence on the expiration of the total sentence of 18 months imprisonment imposed by the Magistrate in South Kowloon Magistracy on 12th June 1989.

    The Defendant during the operational period of the suspended sentences imposed by me had committed fresh offences of a similar nature and again whilst employed in a travel agency. Yet again it appeared that her reason for committing these fresh offences was to help her current boyfriend.

    In my opinion there were no special circumstances which had arisen since the suspended sentences were passed by me including the facts of the subsequent offences that would render it unjust to order the suspended sentence to take effect with the original term unaltered nor were there in my opinion special circumstances which would make it appropriate to order the original suspended sentences to be activated but to take effect immediately.

    Indeed having regard to the similarities of the circumstances of the original offences and the fresh offences and the reasons they were committed the substitution of a greater term for the original term was one I considered but on looking at the totality of the sentence now 3 years I decided not to substitute a greater term."

12. Mr. McCoy first argues that in the light of R. v. Pau Chi-keung & Cheung Hei-lai (1987) H.K.L.R. 1148 the trial judge was wrong even to consider the substitution of a greater term for the original term. Fuad J.A. said at 1153:

"We are not, ourselves, able to envisage circumstances in which it could ever be proper to substitute a greater term for that of the original sentence. On what basis could such an exercise of discretion fairly be based, especially where the original sentence (though suspended) was imposed by a differently constituted court? It must be borne in mind that the Crown has the right to apply for a sentence to be reviewed if it is thought to be manifestly inadequate. It may be that the appropriate authorities will wish to reconsider s.109C(1)(b) in its present form."

13. While this observation must be regarded as having great persuasive power it does not purport to have the effect of repealing the section and the Legislature has not seen fit so to do. The section remains in force. It was, therefore, in our view, open to the judge to have that section in mind when coming to his conclusion. However, the judge did not make use of it.

14. Mr. McCoy submits that the judge, when considering what he should do with the suspended sentence, fell into error by stating that there were no "special circumstances" such as would render it unjust to order that the suspended sentence take effect with the original term unaltered. He submits that the terms of s.109C do not require that "special circumstances" must exist but only that the court must be of the opinion that it would be unjust to activate the original sentence with the suspended term unaltered in view of all the circumstances which have arisen since the suspended sentence was passed. Mr. McCoy suggests that the judge was requiring a higher standard than is stipulated by the section and that, when allied with his preparedness to consider the imposition of a greater sentence, this worked a clear injustice to the applicant.

15. His use of the term "special circumstances" we do not consider to have any real significance. We have no doubt that he was fully aware of the terms of s.109C and was doing no more, when using those words, than indicating that he was aware that he must not act if he was of the opinion that it would be unjust for him so to do.

16. The second matter raised by Mr. McCoy was a suggestion that the trial judge should have made it apparent that he took into account the fact that the applicant had given at least part of the proceeds in each case to another person, namely to her then boyfriend by the buying of presents for him. We find no merit in this suggestion. She was stealing the money for her own purposes. The fact that these purposes involved a benefit to a third party does not, in our view, mitigate in any way in her favour.

17. It is thirdly suggested that proper weight was not given to the fact that she made restitution in part of the money stolen in the first set of offences. Weight was, in our view, clearly given to this consideration at the time of sentencing as the judge, bearing it in mind, suspended the sentence. When it came to activate the sentence the judge was faced with the situation where she had failed to make the mitigation in full, although ordered so to do, and had embarked upon a fresh series of offences. If the suggestion be that the judge was required to give some further weight to this partial restitution we reject it.

18. Mr. McCoy next suggested that the totality of three years is excessive, particularly so given the time that had elapsed between the commission of the original offences and the commission of the second set of offences. These were two set of offences that involved deliberate and repeated breaches of trust bringing considerable financial loss to the victims. We are satisfied that the totality of three years was by no means excessive.

19. Finally Mr. McCoy argues that the judge failed to take into account that the second set of offences was not committed until almost the end of the suspension period. Mr. McCoy readily conceded that the Attorney General v. Wong Ho-ming (1988) I H.K.L.R. 317 makes it plain that the power to refuse to activate a suspended sentence should be exercised sparingly. He was, however, asking, he said, not that the power be not exercised but that the full period of the suspended sentence be not made consecutive.

20. Mr. McCoy next referred to Carr (1979) 1 Cr.App.R. (S) 53 where the court was dealing with an appeallant who had just two months before the end of a 24 months suspension period committed several offences of handling stolen goods. The court said:

"It seems unjust, in all the circumstances, that the whole of the suspended sentence should have been brought into operation and ordered to run consecutively when almost the whole of that period had expired.

    It is mandatory upon this Court, and, indeed, upon a Judge, that a suspended sentence shall be brought into operation when a person is in breach of a suspended sentence, but, nonetheless, if a Court takes the view, in all the circumstances, that the sentence should be ordered to run concurrently, then it is entitled to do so.

    We feel the total sentence is unjust and accordingly we substitute a sentence of two years' imprisonment. In other words, the suspended sentence of one years' imprisonment will run concurrently instead of consecutively. To that extent the appeal is allowed."

21. As can be seen from this passage the court was there not only considering the fact that the fresh offence had been committed almost at the end of the period of suspension, but also the question of totality. The determining factor appears to have been that a variation of the sentence was called for because it offended the totality principle. Mr. McCoy also referred us to an earlier case, R. v. Rafferty, which appears in Current Sentencing Practice under the heading "Suspended Sentences of Imprisonment - Activation". The headnote to this case states:

"The fact that the later offence is committed towards the end of the operational period of a suspended sentence is not a ground for not activating it, but it may justify some recognition in another form."

Sachs, L.J. when dealing with an offender who had almost at the end of a two year period of suspension committed a very minor offence of theft which involved the stealing of metal worth E6 from a car said:

"There is no question but that it was right to activate that sentence, and indeed Mr. Rex did not contest that this would have to be the case. On the other hand it was aptly put forward that as the Appellant had in fact come a long way towards the end of the period when the suspended sentence might be activated, and having regard to his conduct during that period there was a case for, so to speak, making a discount off the eighteen months."

The judge went on to say that each member of the court had come to the conclusion that a discount should be permitted and the discount was given. It is to be noted that one of the facts in the court's mind was that the appellant had, according to the Probation Report, made considerable efforts to keep straight during the period of suspended sentence.

22. The question which we must ask is whether there is any established principle requiring that a discount be given because the later offence is committed towards the end of the period of suspension.

23. In R. Law Ho-Kwan (1988) 2 H.K.L.R. 260 - a decision come upon after argument concluded, and which subsequently had been drawn to our attention by counsel but without their seeking to adduce further argument - the Court of Appeal, when dealing with an application for leave to appeal against the activation of suspended sentences, allowed the appeal saying:

"Due to the comparatively trivial nature of the subsequent offence (which is one of the matters the court should take into account) the judge's order has not been shown to be justified. We would add that an additional factor was that the assault was committed when only just over three months was left of the two year suspension period."

24. The Court there clearly felt that it was a matter which it could take into consideration but regarded it as no more than an additional factor.

25. Fitton deals with the problem of the activation of a suspended sentence, when the fresh offence was committed towards the end of the period of suspension. We now have the benefit of seeing the approved judgment in Fitton which states:

"In approaching this problem, this court would wish to say that it should not be thought that because a person has reached the end, or close to the end, of an operational period, the suspended sentence will be automatically reduced or that he can expect any mathematical reduction in that sentence.

    Parliament intended that a suspended sentence should normally have the effect that if a further offence is committed during the operational period, then the whole of the suspended sentence will be activated. The reason is obvious: the longer the period has been in operation, the more likely that the resolution of a person who is minded to revert to previous criminal activity may weaken and he must expect the full sentence to come into effect if he commits further crime. This situation must be dealt with by the court, based on the circumstances of the particular case, when considering whether to activate a suspended sentence and, if so, whether to order it to run consecutively (as is the usual case) or concurrently or whether to reduce the original sentence."

26. A schedule of the authorities referred to by counsel in Fitton is also before us. Of those cases referred to us by Mr. McCoy in the course of further argument, we need refer only to R. v. Branwhite (1981) Crim.L.R. 193. We do so because of the Commentary, which conflicts with that on Fitton and which states:

"This decision reinforces the principle that where the subsequent offence is committed almost at the end of the operational period of a suspended sentence, that fact is not in itself a ground for not activating the suspended sentence, but will be a ground for activating the sentence with a reduced term."

27. We find ourselves unable to agree that there is any such principle. We are satisfied that Fitton correctly states the law and that whether or not a discount should be given is primarily a matter of discretion for the trial judge: one to be exercised where exceptional circumstances exist. We are by no means satisfied that the trial judge overlooked the fact that the later offences were committed towards the end of the suspension period. Indeed, given his detailed consideration of every aspect of the matter he must, in our view, have been fully aware of this factor even though he did not make express mention of it.

28. In the allied appeal set down for today, of which we take note, the applicant, as we have said, sought leave to appeal against sentences of one year's imprisonment concurrent passed upon her for seven similar offences some of which were committed during the suspension period. That one year - and this unknown to Mr. McCoy and her instructing solicitors - was set to run consecutively to her other sentences giving a totality of four years. We see nothing there calling for our intervention.

29. Indeed, even if we were satisfied that the trial judge had overlooked that the fresh offences were committed towards the end of the suspension period and were therefore, required to come to our own conclusion thereon, we would not have considered that the circumstances were such as would call for the giving of a discount.

30. The application is dismissed.