HKSAR v. POON LAP FUNG

HCMA413/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 413 OF 1998

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J U D G M E N T

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1. The Appellant pleaded guilty to obtaining pecuniary advantage by deception and was sentenced to four months' imprisonment on 15th April 1998 by Mr Tong Man sitting in Eastern Magistracy.

2. Basically, what he did was he had forged on his computer a document which purported to say that he had worked as a marketing executive for a company at a salary of $18,000 when that was not the case. He had in fact worked for that company, but only as a freelance sales agent with no fixed salary. He had produced that forged document to the senior personnel manager of the Belgian Bank when she was interviewing him for a job with the Bank. Probably because of the claim that he had worked as a marketing executive, he was employed by the Bank as a Business Manager at the salary of $20,000. He took up that employment and worked for the Bank for about three months, from November 1997 to February 1998, earning a total of $66,590.

3. The learned Magistrate said, in his Reasons for Sentence delivered in open court, that even for a person with a clear record who has pleaded guilty, there must still be a deterrent sentence to serve as a sufficient warning to others who might attempt such an act. In his Reasons for Sentence, the learned Magistrate said that he regarded the offence as a premeditated and a planned offence in which the Defendant had made use of the trust and the importance that the commercial sector attach to documents. And the learned Magistrate again emphasized that any form of punishment other than an immediate custodial one would not be sufficient to act as a deterrent to others.

4. In the appeal against sentence, Mr Grounds appearing for the Appellant had submitted that a general deterrent sentence should not be passed upon a person with a clear record. In support of that proposition, he had quoted to me the book Sentencing In Hong Kong by Messrs Cross and Cheung at p.35 where it says:

" Offences in relation to which the appellate courts have held it to be appropriate to impose deterrent sentences, even upon first offenders, include those relating to -

(1) public order : R v Nguyen Quang-thong and Others [1992] 2 HKCLR 10, 13;

(2) armed robbery : Attorney General v Yan Chun-fong [1993] 1 HKCLR 42,45;

(3) trafficking in drugs : Chan Chi-ming v R [1979] HKLR 491, 493;

(4) unlawful possession of firearms : Attorney General v Chan Chi Mei-wah [1990] 1 HKLR 190, 192;

(5) kidnapping : Ng Tat-shing and Another v R [1977-1979] HKC 71;

(6) corruption : R v Chan Koon-kwok, Arthur [1990] 2 HKLR 458, 460;

(7) arson : R v Storey and Others (1984) 6 Cr App R (S) 104, 107;

(8) attempting to pervert the course of public justice : Attorney General v Yeung Kwong-chi [1989] 1 HKLR 266, 269;

(9) commercial fraud : R v Kwok Yee, William Cr App 452/93;

(10) obscene publications : Attorney General v Tang King-ming [1986] HKLR 210; and

(11) rape : R v Billam (1986) 8 Cr App R (S) 48, 51."

But the offences listed do not include forgery or obtaining a pecuniary advantage by deception.

5. He has also quoted the case of Attorney General v. So Chin Chiu [1994] 1 HKCLR 106 where Macdougall, V.-P. said at p.108 :

" We think it opportune to repeat what was said by Roberts, C.J. in delivering the judgment of this court in R. V. Ng Tat-shing Crim App No.56/1979 (unreported) :

'This court has made it clear on other occasions that, although the general rule may be that an accused person with a clear record should not normally be given a deterrent sentence, there are exceptions to this general rule. Among these exceptions are cases of unlawful trafficking in drugs, kidnapping, and cases where there is an element of corruption.'

We would add that this includes cases of possession of a dangerous drug for the purpose of unlawful trafficking."

6. There are no guidelines for offences of forgery and obtaining a pecuniary advantage by deception. However, I must point out that persons who forge documents with a view to trying to obtain employment, or better employment, will always stand the risk of being sentenced to immediate imprisonment or receiving suspended sentences. Each case obviously depends upon its own facts and depending upon the gravity of the facts in each case, a prospective defendant faces immediate imprisonment for these offences.

7. Without attempting to lay down a precedent in this particular case, I will say that the facts of this particular case are that when the Appellant appeared before the learned Magistrate, he had been unemployed for two months. He had also, as a result of the sentence of imprisonment passed by the learned Magistrate, been in custody for a period of six days until he was admitted to bail pending appeal. Therefore, as Mr Grounds submitted he had experienced the clang of the prison gates and knows exactly what it is like to be locked up, albeit for a fairly short term. He pleaded guilty at the outset both to the Police and to the Court. After he was admitted to bail, he was, despite the present economic climate, able to obtain two jobs : firstly, as a temporary customer service officer with the Hong Kong Housing Society, earning $10,000 a month where he worked for two months; and presently, since 3rd August 1998, he has been working for a company known as Asia Market Intelligence Limited initially as a market research trainee, and he is now confirmed as a full research assistant and is earning $12,000 a month in this job.

8. As I said, in another appeal some weeks ago, I would not wish this Appellant, as a result of having to serve his term of imprisonment, to be deprived of this valuable opportunity of having a job with an apparently reputable company. In addition, Mr Grounds has informed me that because of his family rallying around, the Appellant is in a position to pay a fine not in excess of what he earned from the Belgian Bank, namely $65,000 approximately. I agree with Mr Grounds that defendants committing these offences and who benefit financially from them should be hit in the pocket in addition to receiving other sentences. Mr Hui appearing for the prosecution has very properly conceded that this sentence appears to be a bit out of line with general sentencing policies.

9. So for all the reasons that I have mentioned, I will allow the appeal against sentence. The sentence of four months' imprisonment is quashed and I substitute therefor the following sentence : a fine of $30,000 plus a sentence of four months' imprisonment imposed by the learned Magistrate, but suspended for 12 months.