SECRETARY FOR JUSTICE v. CHAN KIT BING

CAAR 8/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 8 OF 2000

(ON APPEAL FROM DCCC 595 OF 2000)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 1 November 2000, the Respondent was convicted of conspiracy to defraud following a trial before Deputy Judge Wahab in the District Court. She was sentenced on 15 November 2000 to three years' imprisonment suspended for three years. Leave was granted to the Secretary for Justice (the Applicant) on 30 November 2000 for a review of sentence under the provisions of section 81A of the Criminal Procedure Ordinance, Cap. 221.

The application

(1) Suspended sentence of three years' imprisonment

2. The first ground of this application was that the sentence imposed was not authorised by law. We shall dispose of this ground straightaway as there is no issue upon it. The sentence passed by the judge was contrary to section 109B of the Criminal Procedure Ordinance. This provides that a court which passes sentence for a term of no more than two years for an offence may suspend the sentence for not less than one year and not more than three years. Plainly, a suspended sentence of three years' imprisonment was wrong in law and must be quashed.

3. In fact, it must be said that counsel on both sides immediately, and very properly, pointed out to the judge the error he had made. There then followed a dialogue which resulted in prosecuting counsel informing the judge that, as he was not at that stage functus officio, he might consider altering the sentence to one which was lawful.

4. Unfortunately, common sense played very little part in what followed because, although obviously the sentence had not been perfected at that stage and, equally obviously, the judge appreciated he had fallen into error by oversight, all that he needed to do to make the sentence lawful was to reduce its length to two years suspended for three years. Whether this would have been an adequate sentence was for those purposes irrelevant because at least it would then have been lawful. In the result, the judge pronounced himself unable to do anything about his order and he left it to this court to sort out the problem.

(2) Whether suspended sentence manifestly inadequate

5. The second ground advanced by Mr Stanley Chan on behalf of the Applicant was that the sentence was manifestly inadequate. It was submitted that the judge had failed to identify any exceptional circumstances which properly warranted the suspension of the sentence whether these were looked at individually or taken cumulatively. We were invited to consider the gravity of the offence and the need, in such circumstances, for a sentence to act as a deterrent to other potential offenders.

Prosecution's case

6. The allegation made by the prosecution was straightforward. The Respondent worked for about two months under a false name for a bogus company known as Ka Fung Trading Company (Ka Fung) which rented office and godown facilities and had a bank account. Orders amounting in total to $1,500,000 were placed with seven suppliers between September and November 1994. The goods were duly delivered, but they were paid for by means of post-dated cheques which on presentation were not honoured.

7. The instigator of the enterprise was a man named Liu Tang-fai (Liu) who was named in the charge against the Respondent as one of the other conspirators. However, at the Respondent's trial no evidential link was established between the Respondent and any of the others apart from Liu. The Respondent had been interviewed by Liu for the post of merchandiser and purchaser. She directly dealt with at least two of the suppliers in the series of what are commonly called "long firm fraud" offences which were the subject of the conspiracy.

8. The Respondent was interviewed by police in November 1994 and in April 1995 was given unconditional bail. Five years then elapsed before she was rearrested.

Judge's reasons for sentence

9. Having rejected the Respondent's defence that she had been a wholly innocent pawn in the activities of Ka Fung, the judge in his Reasons for Sentence addressed the features of the case which it appeared to him had the most relevance.

10. Firstly, the goods supplied to Ka Fung had been largely recovered by the police. This, as the judge aptly expressed it, was not a mitigation factor but was "one less aggravating circumstance".

11. Secondly, Liu had been sentenced over three years earlier to a term of two and a half years' imprisonment. The sentencing judge who dealt with that case had taken a four-year starting point. Liu had pleaded guilty to five charges of obtaining property valued at $1,100,000 by deception. Initially, Liu had fled to the mainland but he returned to Hong Kong, having notified police he was coming back, and thereafter he fully cooperated with the police.

12. The judge in the matter presently before us, decided that a four-year starting point was appropriate for the Respondent also. He rejected the notion that community service was a viable option, after counsel for the defence had cited HKSAR v Chow Chak-man and Anor [1999] 2 HKC 659. We should perhaps add that the decision in Chow Chak-man was very recently subjected by this court to criticism and disapproval in HKSAR v Wong Yiu-kuen CACC 463/2000 (unreported, 27 February, 2001).

13. Thirdly, the judge took into account the delay in bringing the Respondent to justice. He said:

"I will give Madam Defendant a discount on this basis: in April of 1995, Madam Defendant was unconditionally released by the police. It was only in May of this year that she was arrested and charged in the present case. I say immediately that there is nothing before me to indicate any fault on the part of the police for this gap of some five years and there is nothing before me to indicate that Madam Defendant had been avoiding the police for that period. Be that as it may, there has been a gap of some five years before Madam Defendant was arrested and charged in this case. I think Madam Defendant is entitled to expect that given the lapse of time on her being unconditionally released, that the storm was over, that she would not be charged. I will give Madam Defendant a discount on sentence for frustration of that expectation.

From the staring pointing of 4 years, I reduce that to one of 3 years. I am duty-bound to consider whether I should suspend that term of imprisonment." (Tr. p.18)

14. In our view, the judge was right to have considered that only a sentence of imprisonment was appropriate for this case, but we consider that for the Respondent's role, which was far smaller than the part played by Liu, the judge might well have taken a lower starting point in the region of about two to three years' imprisonment to reflect her limited role.

15. The judge then purported to give his reasons for suspending the sentence and he went on to say:

"I am willing to accept that for the purposes of sentence Madam Defendant is throwing herself at the mercy of this court. I note the personal circumstances of this defendant. It is quite clear to me that her present husband has some illness, some skin problem. It is quite clear to me that the two children of Madam Defendant require her personal care and attention. Out of mercy for Madam Defendant and out of mercy for the two children, I will suspend that term of imprisonment for a period of 3 years." (Tr. pp.18-19)

16. The judge, having explained the possible consequences of breaching the order he had made, went on to say that he had also taken into account a short period during which the Respondent had been in custody pending sentence. Quite why the judge also thought that her experience during the trial had any bearing on the matter is a little difficult to follow remembering that the Respondent had shown no remorse, had contested the charge and had been found guilty of it. "I tend" said the judge "to think that she has learned a good lesson". He then went on to pass the suspended sentence, having treated the Respondent as someone who was effectively a person of good character.

17. The reasons given by the judge for suspending the sentence amount to little more than a consideration of the personal circumstances of the Respondent, which had clearly moved the judge, to a desire to enable the Respondent to be in a position to look after her children and her husband.

Respondent's submission

18. Before us, Mr Suen Kam-hee who now appears for the Respondent, not having conducted the defence in the court below, submitted that the delay in bringing the case to trial was of such a high order that it amounted to a wholly exceptional circumstance which justified the suspension of the prison sentence. He correctly pointed out that there was no suggestion that the Respondent had been avoiding the police throughout the time since the commission of the offence. It may or may not be that she had remained at the same address throughout, but whatever the situation may have been, we are satisfied that no fault attaches to the Respondent for the delay.

Conclusion

19. We do not consider that this serious case warranted the imposition of a community service order which counsel in the court below had suggested was appropriate. In the normal course of events, the Respondent could not have complained at an immediate sentence of imprisonment. However, this case did not follow a normal course. We have had to consider whether the delay, for which no good reason has been advanced, was a factor which can only be described as an exceptional circumstance. The case had involved a straightforward investigation of facts which were not complicated.

20. Ultimately, the best way of looking at the delay in this case is by appreciating the fact that the Respondent was 31 years old at the time of the offence. She is now 38 years old. Leaving aside the part played by the Respondent and the subsequent report about her lifestyle, which reveals that she has apparently completely rehabilitated herself, both of which are side issues, the delay was, in our opinion, a most powerful circumstance making the suspension of the sentence an appropriate method of disposal on the special facts of this case. It seems, therefore, that although the judge provided the wrong reason for suspending the sentence, justice in the end was done, subject only to the length of the sentence he imposed.

21. Accordingly, we shall allow this application. We quash the sentence of three years' imprisonment suspended for three years and, in its place, we substitute a sentence of two years suspended for three years.