HKSAR v. KWAN, TSE KIT JONATHAN

HCMA 280/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 280 OF 2017

(ON APPEAL FROM ESCC NO 287 OF 2017)

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J U D G M E N T

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1.  This is an appeal against sentence. On 19 April 2017, the appellant pleaded guilty to three charges of theft before Principal Magistrate, Ms Bina Chinrai, (the Magistrate).

2.  The appellant is 27 years of age.  He worked as a social worker at Yan Chai Hospital Sheung Wan Rehabilitation Services Centre Shine Court (the Centre).  He admitted that on 23 October 2016, he stole $9,000 cash being the property of one of the residents at the Centre (Charge 1); between May and October 2016, he stole $27,096 cash being the property of the Centre (Charge 2); and between August and October 2016, he stole $13,548 cash being the property of the Centre (Charge 3).  The cash in relation to Charge 1 was petty cash to cover expenses of one of the residents.  The cash in relation to Charges 2 and 3 was rental payments collected from various residents.  The sum of $27,000 cash was seized from the appellant which was ordered to be returned to the victims and a further compensation order of $22,644 was made in relation to the balance of the total amount of cash stolen.  The orders were complied with and the stolen monies were returned to the victims.  No financial loss was suffered by the victims.

3.  On 5 May 2017, the Magistrate sentenced the appellant to concurrent terms of imprisonment of 2 months and 2 weeks, 7 months, and 3 months and 2 weeks on Charges 1, 2 and 3 respectively.  The total sentence imposed was therefore 7 months’ imprisonment. 

4.  The appellant appeals the sentence on the ground that it was too severe. 

5.  The Magistrate called for a background report before sentencing.  It sets out in detail the background and character of the appellant.  At the time of the offences, he was living with his parents with whom he has a close relationship.  He is an only child.  He did reasonably well at school and went on to complete an associate degree in Social Science in Social Work.  He has held various jobs as a social worker assisting disabled persons.  He had been working at the Centre from 2015 to 2016.  It is acknowledged in the report that he readily admitted the offences and acknowledged his wrongdoing.  He also expressed his regret and remorse for what he had done.  He frankly admitted that he stole the money out of greed which he said he used to travel to relieve the stress of work.  His parents confirmed that he was susceptible to stress but nevertheless were shocked by what he had done as this was completely out of character. 

6.  The Magistrate in her reasons for sentence set out the background of the case and explained the sentences that she imposed.  On each charge, she discounted the starting point by one third to reflect the appellant’s guilty plea, together with a further discount for the restitution that had been made.  On Charge 1, she took a starting point of 4½ months’ imprisonment which she discounted to 2 months and two weeks’ imprisonment.  On Charge 2, she took a starting point of 12 months’ imprisonment which she discounted to 7 months’ imprisonment.  On Charge 3, she took a starting point of 6 months’ imprisonment which she discounted to 3 months and 2 weeks’ imprisonment.  She took into account the totality principal and ordered that the sentences on each charge be served concurrently.  She explained that she considered whether there were any exceptional circumstances to warrant suspending the sentence of imprisonment but said that she did not see any.  She further explained that the offences of theft involved a breach of trust and she saw no justification to depart from the guideline of an immediate custodial sentence.  She cited HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 where the guidelines in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 were adjusted.  It provides that the sentencing tariff of theft involving a breach of trust where the amount involved is less than $250,000, the sentence should be less than 2 years’ imprisonment after trial.  The amount involved in this case was a total sum of $49,000, although it involved three separate offences.

7.  Whilst the Magistrate very thoroughly considered the relevant issues when sentencing the appellant, I consider that on a rehearing of the case that greater emphasis should have been placed on the following matters. 

8.  First, the appellant’s background and personal circumstances, namely that this was the first occasion that he has come before the courts and that he was of hitherto good character who had devoted his career to work with disabled people as a social worker. There is also the appellant’s relatively young age and lack of maturity that appears to have had a bearing on his conduct. 

9.  Secondly, the three offences involved the misappropriation by the appellant of a total sum of about $49,000.

10.  Thirdly, the appellant made full restitution to the victims.  If restitution is made to a victim as a genuine sign of remorse for what the defendant has done, then real weight must be given to it as a mitigating factor.  I understand that even though a compensation order was made in the present case, it had been indicated by the appellant that he would make full restitution to the victims.  The offer of restitution having come from the appellant, and it having been made, is a material factor in mitigation.  I should point out that the Magistrate did reflect the restitution made to the victims by means of a discount to the starting point.

11.  I agree with the Magistrate that this involved a breach of trust and that an immediate custodial sentence was warranted in the circumstances of the case.  Where I respectfully differ with the Magistrate, is in relation to the starting point imposed on each charge. 

12.  I would impose a starting point on Charge 1 of 3 months’ imprisonment, on Charge 2 of 6 months’ imprisonment and on Charge 3 of 4 months’ imprisonment.  Like the Magistrate, I would reduce the sentence on each charge by one third for the appellant’s guilty plea, bringing the sentence on Charge 1 to 2 months’ imprisonment, on Charge 2 to 4 months’ imprisonment and on Charge 3 to 2 months and 2 weeks’ imprisonment.  I would further reduce the sentence on each Charge for the restitution that has been made by the appellant, resulting in a sentence on Charge 1 to 1 month and 2 weeks’ imprisonment, on Charge 2 to 3 months and 1 week’s imprisonment and on Charge 3 to 2 months’ imprisonment.  Taking into account the totality principle, I too, like the Magistrate, would order that the sentences be served concurrently. 

13.  For the foregoing reasons, I allow the appeal and set aside the sentences which I substitute as indicated in the previous paragraph.  The appellant is to serve a sentence of imprisonment of 3 months and 1 week.