XTRNX HKSAR v. WONG LO TAK

CACC No 652 of 1997

HEADNOTE

Multiple counts of deception -different victims cheated of different amounts of money at different times - sentencing approach 20 counts of deception - total sentence of 2 years on a plea and partial restitution

[English Translation-英譯本]

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 652 OF 1997

(ON APPEAL FROM DCC NO. 812 OF 1997)

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JUDGMENT

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Patrick Chan,CJHC:

1. The applicant pleaded guilty in the District Court to 20 counts of obtaining property by deception (commonly known as deception), contrary to s 17(1) of the Theft Ordinance (Cap. 210). He was sentenced to two months' imprisonment on each count and the sentences were to run consecutively totalling 40 months' imprisonment (i.e. three years and four months). He now applies for leave to appeal against sentence.

2. The applicant's daughter and the children of the four victims were classmates. The applicant and the four victims came to know each other through their children. In the period between August 1995 and February 1997, he had respectively cheated the victims of substantial amounts of money on the pretext of investing in various types of business on their behalf, jointly purchasing property or buying bird's nests for them. In order to maintain their trust in him, the applicant had during this period given each of the victims certain sums as 'profit'. Between August 1995 and February 1997, the applicant had on nine occasions cheated the first victim of amounts ranging from $7,500 to $50,000, and in the meantime, he had returned $40,000 to the victim as profit. The second victim had been cheated by the applicant on six occasions between October 1995 and October 1996 of amounts ranging from $3,800 to $50,000 totalling $120,000. The applicant had also returned $70,000 to the second victim as profit for her investment. The third victim had been cheated of a total of $100,000 by the applicant on two occasions between June and November 1996, the first sum being $15,000 whereas the second being $85,000. In November 1996, the applicant gave $78,900 to the victim as profit by way of a cheque which subsequently could not be honoured. The fourth victim had been cheated by the applicant on three occasions between late 1996 and January 1997 of a total of $60,000 ranging from $5,000 to $40,000. The amount involved in these 20 offences of deception totalled about $460,000, of which $120,000 had already been returned to the victims, leaving a total of $340,000 having been ultimately cheated. The applicant admitted having spent the money on gambling and household expenses.

3. Mr. Wong, Counsel for the applicant submits that the trial judge had not fully taken account of the totality principle and that the total sentence of 40 months' imprisonment was manifestly excessive. In referring to Cheng Yuk Kwei [1987] HKC 130, Counsel submits that that case was even more serious than the present one, in that the period during which the deception took place was longer; the number of offences greater and the amount of money involved bigger. Yet the total sentence was 3 1/2 years' imprisonment and the sentence for 27 counts of deception was only 2 years' imprisonment.

4. Mr. Macleod, Counsel for the Department of Justice submits that Cheng Yuk Kwei is not a case in which a sentencing guideline was laid down. He submits that the Court of Appeal would interfere with the sentence imposed by the trial judge only when it had substantially deviated from the guideline. Mr. Macleod takes the view that the applicant had within one and a half years committed a total of 20 counts of deception. Not only had she been in breach of her fiduciary duties, she had also failed to compensate the victims for their loss. Counsel further points out that the various offences committed by the applicant could not be regarded as arising out of the same incident as she had practised her deception on different victims at different times. A consecutive sentence is therefore appropriate and should be imposed. As long as the total sentence is not manifestly excessive, the Court of Appeal should not interfere with it.

5. In passing sentence, the trial judge said that the applicant had one similar conviction in 1989 and that she had already been given a chance when she was then sentenced to 6 months' imprisonment, suspended for 18 months. The trial judge took the view that 6 months' imprisonment on each count was appropriate. However, having taken account of the applicant's plea of guilty in the first instance, the sentence on each count was reduced by 2 months, and having further taken account of the totality principle, the sentence on each count was further reduced to 2 months' imprisonment. Since there were altogether 20 counts, the applicant was therefore sentenced to 40 months' imprisonment.

6. The sentencing approach adopted by the trial judge was to impose a sentence of 2 months' imprisonment on each count, totalling 40 months for 20 counts and the sentences were to run consecutively. We are of the view that in normal cases where similar offences are involved, particularly as in the present, this sentencing approach is not appropriate. This is because the individual circumstances and seriousness of each offence have not been fully taken into account. Clearly, in cases where similar offences are involved, although the modus operandi for these offences are more or less the same, there must be some offences which are less serious and others which are more serious. For example, the first few offences might only be occasions for an offender to try his hand at practising deception. However, once he gets what he wants, he would intensify his activities with the amount deceived getting bigger and bigger. The gravity of offence would no doubt be increasingly greater. In the present case, the smallest amount involved was $3,800 and the highest was as much as $85,000. Of course, the amount being cheated was not the most important factor, but only one of the factors in deciding the seriousness of the offence. In the present case where short custodial sentences were uniformly imposed for a series of offences and to run consecutively to achieve a totality of sentences, problems would arise if some of the convictions were later quashed on appeal and the sentences had to be altered. Hence, Counsel for both parties agree that the sentencing approach adopted by the trial judge was not entirely appropriate in the present case.

7. We take the view that if a defendant had committed a series of similar offences at different times, in different places and under different circumstances, the judge should adopt a flexible approach in determining the sentence. Normally, he should first consider the most serious or the more serious incident of these similar offences, and then the number of offences the defendant had committed and the degree of their seriousness. Having considered the most serious cases in this type of offences, the maximum penalty, the sentencing guideline and the normal sentence imposed in similar cases, the judge should proceed to decide as the starting point for sentencing the defendant for those similar offences. The next step is to consider the defendant's mitigating factors, such as the plea of guilty, any restitution and his clear record etc. in order to arrive at an appropriate reduction. Finally, the totality principle should be considered to determine the total sentence which the defendant deserved. Once the total sentence has been determined, this sentence should be imposed on the defendant for each of the offences committed, but the sentence should run concurrently. We are of the view that this approach is more reliable and is capable of reflecting the gravity of the similar offences the defendant had committed.

8. In this present case, we take the view that the trial judge could have separated the charges into four groups of offences, corresponding to the offences committed in relation to each of the four victims. Having taken account of the facts of the case, we agree with the submission of Mr. Wong that the gravity of the offences in the present case was less than that of Cheng Yuk Kwei, in that the number of victims in the present case was less, the period during which deception took place was shorter, the amount of money involved was less and the number of offences was smaller. Having taken account of the totality principle, we are of the view that for all the 20 counts a total sentence of 24 months' imprisonment is appropriate and should be imposed on the applicant.

9. As for the first victim, she had been cheated by the applicant of about $180,000 on nine occasions within one and a half years. Having regard to his plea and the mitigating factors, we take the view that the applicant should be sentenced to 15 months' imprisonment for these 9 counts. The second victim had been cheated on six occasions within about a year of a total of $130,000. We take the view that the total sentence for this group of offences should be 12 months' imprisonment. The third victim had been cheated of a total of $100,000 on two occasions within several months. We take the view that the sentence for these two offences should be 8 months' imprisonment. The fourth victim had been cheated of $60,000 on three occasions within two to three months. We are of the view that the applicant should be sentenced to 8 months' imprisonment for these offences.

10. That is to say, for Counts 1 to 9, the sentence for each of the offences should be 15 months' imprisonment and the sentences are to run concurrently. As for Counts 10 to 15, the sentence for each of the offences should be 12 months' imprisonment and the sentences are to run concurrently. As for Counts 16 and 17, the applicant should be sentenced to 8 months' imprisonment on each count and sentences are to run concurrently. Finally, for Counts 18 to 20, the applicant should be sentenced to 8 months' imprisonment on each count and the sentences are to run concurrently.

11. Having regard to the totality principle, we take the view that 24 months would be more appropriate. Accordingly, we order that of the 12 months' sentence for Counts 10 to 15, 6 months should run consecutively with the sentence for Counts 1 to 9. Of the sentence for Counts 16 and 17, 3 months should run consecutively with the sentence for Counts 1 to 9 and the sentence for Counts 10 to 15. The sentence for Counts 17 to 20 should run concurrently with the other sentences. The total sentence is therefore 24 months.

12. For the aforesaid reasons, we grant leave to the applicant and allow her appeal. We order that the sentence passed by the trial judge be set aside and be substituted by the aforesaid 24 months' imprisonment.