HKSAR v. YUE UN-CHOW

CACC275/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 275 OF 1999

(ON APPEAL FROM DCCC 173 OF 1999)

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. On 14th May 1999, having earlier pleaded guilty to two charges of using a forged instrument (charges 3 and 10), one charge of theft (charge 4) and one charge of attempted theft (charge 11), the Applicant (D1 at trial) was sentenced by Judge Toh to a term in total of twenty-eight months' imprisonment. She now seeks leave to appeal against her sentence. Two others, with whom this court is not concerned, were dealt with for other offences on the same indictment.

2. The judge summarised the facts in passing sentence for each offence, all arising from the loss of a cheque book issued by Bank of East Asia, in this way:

"The 1st defendant has pleaded guilty, first of all, to charges 3 and 4, in that on 21 September 1998 she produced one of the stolen cheques to a bank teller at the Jordan Road Branch of the Bank of East Asia. She used her own ID card and subsequently she managed to get $19,000, therefore giving rise to the 4th charge of theft.

The 1st defendant is 25 years old and only has one previous conviction for possession of dangerous drugs.

For charge 3, using a forged instrument, under section 73 of the Crimes Ordinance, Cap. 200, the maximum sentence is 14 years' imprisonment. The money was never recovered. I consider, therefore, in the circumstances, that for charge 3, the starting point should be one of 18 months' imprisonment, reduced to 1 year because of the plea.

For charge 4, it will be 9 months as a starting point, reduced to 6 months because of her plea.

As for charges 10 and 11, to which the 1st defendant also pleaded guilty, these are similar charges to 3 and 4 in that she presented another cheque for $30,000 on 8 October and she successfully took that amount giving rise to charge 11 of theft."

Pausing there, it was an error on the part of the judge to say the $30,000 had been "successfully" taken. This is not heavily relied upon by Mr. Loughran who represents the Applicant in these proceedings. It was, of course, an unsuccessful attempt of theft. Continuing with what the judge said in passing sentence:

"The starting point I consider appropriate for charge 10 is 2 years, reduced to 16 months because of her plea. As for charge 11, it will be 9 months, reduced to 6 months because of her plea.

I have to consider that for the 1st defendant she has never been to prison before. I will, in consideration of that, make 6 months in charge 4 to be concurrent to the 1 year in charge 3. I will also make 6 months in charge 11 concurrent to the sentence in charge 10 of 16 months.

The 1st defendant will go to prison for 28 months. That is as lenient as I can be in the circumstances."

3. Although it does not readily become apparent from the way the judge expressed her sentencing on the various counts, in effect the Applicant received a sentence of twelve months for the September offences and a further sixteen months for the offences in October 1998.

4. Mr. Loughran, on the Applicant's behalf, has submitted that the sentence in totality was manifestly excessive, and that the judge was wrong to have made the sentences for the two sets of offences consecutive to each other, at least to the full extent. He argued that the circumstances of these offences were such that they should have been treated as "one transaction".

5. We cannot agree with that submission. The "one transaction" rule is graphically demonstrated and was correctly applied by the judge in passing concurrent sentences for the two September offences and concurrent sentences for the two October offences. The two charges which were preferred relating to each of those months were in reality one transaction in September and one in October. However, the two sets of offences were separate and distinct. They were committed over a period of 18 days and they involved $49,000 in total.

6. We think it more appropriate to look at the totality and, insofar as that is concerned, we are satisfied that in this case the totality of the sentence was manifestly excessive. These were not sophisticated frauds. They were committed in an amateurish way that was almost certain to result in the Applicant being discovered. We feel that the proper starting point should not have been three and a half years but 2 1/2 years, and that the sentence, bearing in mind the plea of guilty, should have been one in total of 20 months' imprisonment.

7. The way that we propose to ensure that this sentence is substituted is to say that the sentence of 16 months on charge 10 should run only partly consecutively to the other sentences, to the extent of 8 months. The sentence on charge 11 will, as the judge herself had ordered, run concurrently. The sentences are otherwise untouched and the imprisonment, therefore, to be served by the Applicant will be 20 months, which represents a reduction in sentence of 8 months.