THE QUEEN v. CHEN YUEH-LING

IN THE COURT OF APPEAL

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JUDGMENT

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Mortimer JA (giving the judgment of the Court) : On 7 August 1996 the applicant pleaded guilty to one offence of theft and one offence of evading liability by deception before Deputy Judge Jennings in the District Court. She was sentenced to 18 months imprisonment on the 1st count and 6 months imprisonment consecutive on the 2nd count, making 2 years imprisonment in all. She now seeks leave to appeal against those sentences.

The facts

2. On 15 February 1985 a gold dealer received an order over the telephone from the defendant for 70 Krugerrands and 15 taels of gold to be delivered to her address. She was clearly trusted by him because the gold was delivered and she issued a cheque for $215,000 dated the same day. It appears that a few hours later on that day she decided not to make payment. The next day she fled to Taiwan. When the cheque was presented, it was referred to the drawer and the matter was reported to the police.

3. The 2nd count took place before that. On 11 February 1985, the defendant phoned Lees Securities Company, after being informed of prices of shares, she ordered them to sell shares in Cheung Kong and Hutchison Whampoa which she said she had in hand. The broker sold those shares but over the next few days could not contact the applicant for delivery up of the certificates. In fact, the broker then had to buy in to complete the order and because of the movement in prices, those shares cost just over $20,000 more than the amount at which they had been sold. The broker had to pay the difference.

4. On 16 February the applicant was found by the broker. She could not let him have the certificates. She appeared to make good the broker's loss by issuing a cheque, but that cheque also bounced on 18 February after she had gone to Taiwan. That matter was also reported to the police.

5. She remained in Taiwan until 28 December 1994. Some months after she had returned to Hong Kong, she gave herself up to the police. That was on 19 March 1995. She was arrested. Under caution, she admitted the first offence.

6. When she appeared in court, she pleaded guilty. The judge sentenced her as we have already mentioned.

The trial

7. The judge took into account her plea and her good character but said that these offences were deliberate, not reckless and that the amount of money involved was substantial. He considered - as they were separate offences - that the sentences should be consecutive. He rejected as matter of mitigation the submission that her son had offered to pay the amount involved. He did this rightly because no sums had been paid by the time of the trial.

8. The judge took as his overall starting point - before mentioning what sentences he was to pass on each offence - 3 years imprisonment and then went on to consider the 1st charge on which he ordered 18 months imprisonment and the 2nd charge, 6 months imprisonment, making them consecutive.

9. In principle, that was the wrong approach to totality. The judge should approach each offence first and having decided what is the appropriate sentence on each offence, then consider the question of totality at the end. But we are chiefly concerned with the overall sentence and not particularly with the way in which the judge reaches that sentence.

On appeal

10. Counsel in the court below submitted that the judge ought to consider suspending the sentence in the very unusual circumstances of this case, but the judge considered that he could not properly do that.

11. We turn to consider the particular circumstances of the applicant.

12. The applicant is now in her late 50s. Without going into the whole of her previous record, it is sufficient to say that she had lived an unblemished life and - it would seem - a hardworking life until the time of these offences. It is suggested that her cohabitee had something to do with the commission of them before she went to Taiwan with him. Whether that is the position of not, it is quite clear that considering the many years of good character which she bore before the commission of the offences that they were wholly out of character. Then, the applicant lived a hardworking life in Taiwan from where she remitted money to keep her mother here in Hong Kong. She can now properly submit through her counsel that not only did she bear a good character before the offences but since these two isolated matters, she had borne a good character since. Then she chose to surrender herself to the police in respect of these offences and confessed to the 1st count in the indictment when she was arrested. That was another matter which can be taken into account in her favour.

13. Looking at this matter in the round, we consider that the judge's approach to the sentence was wrong in principle because he considered totality before the appropriate penalty for each offence. We therefore look anew at the sentences. So far as the 1st count of the indictment is concerned, we consider that a proper starting point was indeed two years after trial. For the plea and good character, we would reduce that sentence to 1 year and 3 months. For the 2nd count, we consider the proper starting point to be 9 months imprisonment, reduced to 6 months. Those sentences ought to be served consecutively, making 1 year and 9 months in all. But having regard to the nature of the offences; the applicant's particular circumstances and character; and the fact that although the 1st count in the indictment was a serious offence, it was not of the utmost gravity, we consider that this case is one in which the judge ought to have suspended those sentences.

14. In these circumstances we quash the sentences that have been passed. We reduce the overall sentence to 1 year and 9 months. We order that sentence to be suspended for a period of 2 years.