SECRETARY FOR JUSTICE v. WONG KAY DIN

CAAR 7/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 7 OF 1998

(ON APPEAL FROM DCCC 11/98, 81/98 AND 1216/97 (CONSOLIDATED))

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. This application is made by the Secretary for Justice to review the sentences imposed on this respondent by Judge Line in the District Court.

2. The respondent was convicted of 9 charges of theft, contrary to s. 9 of the Theft Ordinance, Cap. 210. The Judge sentenced the respondent to 3 years imprisonment on all the charges and ordered that all the sentences be served concurrently. It is the contention of the Secretary for Justice that these sentences were wrong in principle and or manifestly inadequate.

3. For the purposes of this application the facts can be stated quite simply.

4. The respondent held a position of trust in the Tin Lok Baptist Church. A limited liability company was formed in 1983 Tin Lok Baptist Church Ltd. (TLBC Ltd.) for the management of the church's property and finance. The respondent was a Director of TLBC Ltd. and assumed a prominent role in the company's affairs.

5. The respondent had contributed to the church's finances while his own separate business interests prospered. However when his business interests faltered he withdrew moneys from the church. The amounts he withdrew were far in excess of the amounts he contributed. The way he did this was to mortgage property owned by TLBC Ltd. and apply part or all of the proceeds thereof for his own benefit. The total amount involved was $2,976,661.00. The period covered by the charges was from June 1993 to January 1996.

6. When passing sentence the Judge said:

"Between 1993 and 1996, you stole nearly $3 million from a charity. The evidence against you is overwhelming. It only adds to your shame and not to your sentence that you lacked the decency to own up to it and you have spent money on dishonest defence rather than compensation.

This was a gross breach of trust by a man who should have known better. You acknowledged in the trial that you appreciated your duty to keep your affairs and those of the company separate. These convictions arise against a background of you consistently treating the company property as your own, conduct which you hid from your co-directors and carried off with arrogance and deceit.

Of course, I bear in mind you have no previous convictions but that has to be balanced against the fact that it is only people with such a character who are put in the position of trust which you enjoyed. The damage you have done the church for whose benefit the company existed has been substantial. In a case such as this, there is every reason why I should exercise all those powers available to me to mitigate the loss that you have caused.

I accordingly make a criminal bankruptcy order pursuant to section 84A of the Criminal Procedure Ordinance. You have no substantial assets. There is no point in seeking to quantify the 1oss at a greater sum than that particularised in the theft charges which amounts to some $2,976,661, and I specify that the Tin Lok Baptist Church Limited is the loser in that sum for the purposes of the order.

Given the amount you have stolen and the period over which you stole it; given the breach of trust and the nature and quality of that trust, I judge that a sentence of not less than 3 years' imprisonment is called for in total. There is no merit in complicated overlapping of the terms of imprisonment here. In the conventional way, I order that there be a sentence of 3 years' imprisonment on each of the charges of theft, all to run concurrently with each other."

7. The main complaint made by the Secretary for Justice is that the total sentence imposed did not reflect the assessment the Judge had made of the respondent's criminality.

8. Mr. Reading, S.C. for the applicant called in aid the principles laid down in R. v. Barrick [1985] 81 CR. APP. R. 78 and R. v. Trevor Clark [1998] 2 CR. APP. R. 137. In simple terms it could be said that Clark is an attempt to take cognisance of inflationary values since Barrick which was heard in 1985 so as to ensure that the monetary factors which are weighed in determining an appropriate sentence are kept in line.

9. There is however one further complication. Since 1985 in the U.K. the maximum sentence for theft has been reduced from 10 years to 7 years. So far as serious cases are concerned the only way in which sentences in excess of 7 years imprisonment can be imposed is if there is more than one charge and an order is made to make one of the sentences either wholly or partly consecutive.

10. In Hong Kong the maximum sentence which can be imposed for theft is still 10 years so this type of adjustment is not required.

11. As has already been indicated the amount involved in the present case is just under $3 million. We can see no rational justification to depart from the sentences suggested in Clark. This would mean that in the present case the proper sentence which should have been imposed was somewhere around 4 1/2 years.

12. There is a further matter which arises under this application. The Secretary for Justice has been critical of the method which was adopted by the Judge of deciding what the appropriate sentence should be taking into account totality and then imposing that sentence on all the charges and ordering that they be served concurrently.

13. While it has to be the case that a large measure of discretion must remain for the sentencer so as to enable him or her to achieve the desired result we are not persuaded that the Judge was in any way wrong in this connection. Unless this approach is adopted there is a risk that if for any reason some of the convictions are quashed on appeal there is a possibility that there will be a distorted or unrealistic sentence if each charge does not carry the proper sentence.

14. There was nothing in the personal circumstances of the respondent to justify a reduction from the 4 1/2 year sentence we have referred to. He has shown no remorse and inevitably it is the case where someone has been put in a position of trust that they will have an exemplary previous character.

15. We are satisfied that the sentences which were imposed were manifestly inadequate. We order that the sentences be quashed and sentences of 4 1/2 years imprisonment be substituted for them. All of the sentences will be served concurrently.