THE QUEEN v. FONG YIN-KWAN, RAYMOND @ FONG CHI KWONG

IN THE COURT OF APPEAL

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JUDGMENT

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McMullin, V.-P. :

1. The appellant pleaded guilty in the District Court to seven charges of obtaining property by deception contrary to Section 17(1) of the Theft Ordinance and four charges of attempt to commit that offence.

2. He had embarked upon a course of conduct which led to inevitable disaster. What he had done was to obtain traveller's cheques, cash those cheques and, either before or after he had done that, report them missing. He thus obtained from various banks alleged replacements of the traveller's cheques which he then immediately cashed.

3. He received sentences totalling two years' imprisonment.

4. In passing sentence the judge said that little credit could be given for the guilty pleas which he characterized as being "at the last possible moment". This approach was the subject of the first ground of appeal put forward by Mr. Polson on behalf of the applicant. It seems that the judge may have been, to some degree, under misapprehension as to the plea and as to the defendant's attitude generally owing to the fact that certain circumstances relevant to the matter were not put before him.

5. We are informed that on his arrest on the 7th of March 1985 the defendant made a lengthy confessional statement to the police admitting the offences and expressing remorse and offering restitution although it must be added that his chances of doing so at that stage are not very realistic.

6. When taken before the Court on the 25th of April he made similar representations when certain other offences were put before the Court as offences which he wished to be taken into consideration.

7. On the 30th of May, on the advice of his solicitor it appears, he pleaded not guilty to the present charges notwithstanding that he had expressed to his advisor a desire to plead guilty. We are informed that the reason for that was that he was told by his advisor that it would be preferable if he pleaded not guilty at that stage so that time would be given for preparation of the papers in respect of the plea in mitigation. That, if it be true, seems a very misguided approach to a serious case which, in the event redounded to the disadvantage of the client.

8. On the 13th of August, when he was differently represented, he pleaded guilty and these considerations were not then put before the District Judge. The judge called for a background report. This showed that the defendant was brought up in very comfortable circumstances. We do not need to go into the details of that report. We have fully considered them. It is clear that he was a greatly overindulged child. From the age of sixteen he was schooled partly in Canada and partly in the United States. In each place there was made available to him by his indulgent parents a very considerable amount of money which he spent freely, evidently making a good fellow of himself amongst his companions during the latter part of his academic career while engaged in business studies at a polytechnic institution in California. It seems to have been about then that he developed the gambling habit which, when he eventually returned to Hong Kong, was still with him and as a result of which he got into the hands of loan sharks. At about that time, he commenced upon the series of acts which resulted in his being brought before the Court on the present charges.

9. We adjourned the hearing on the previous occasion, which was the 4th of October, for probation reports and for suitability and background reports from the Commissioner of Correctional Services,

10. These we now have to hand and, insofar as such researches ever can do so, it can be said that they do support the impression that the applicant had a rude awakening and is indeed both chastened and remorseful at the present time.

11. At the time of the offences he was less than 21 years of age. It was therefore incumbent upon the sentencing judge to have regard to the provisions of Section 109(a) of the Criminal Procedure Ordinance. The judge, in the present case, has not indicated that he had done so and this is the substance of the only other ground of appeal put before us by Mr. Polson.

12. It must be said that while an appellate court should always be slow to assume, from mere silence, that an experienced judge has overlooked a common and mandatory requirement attaching to the discharge of his duty, it is, from the point of view of an appellate court, highly desirable, in any case where this obligation arises, that the judge should make it clear that he has borne that duty in mind.

13. Whether or not it was observed in the present case, we certainly must now consider, in the light of everything that is presently available before us, whether a custodial sentence is the only appropriate sentence for these offences.

14. Bearing in mind the different view we feel able to take of the plea and the question of remorse, the fact that all the money has now been repaid, albeit by the applicant's parents; and bearing in mind also their continued support, notwithstanding the shock and suffering which, as it is clear from the report before us, they had suffered in this affair, and further taking into account the clear record of the applicant and the clearly chastening experience of two months incarceration up to the present date, we think that this experience is probably sufficient to turn him from the self-indulgent way of life which he has observed up to the present.

15. There is a genuine possibility that this first-time offender has seen sufficient of the inside of a prison to temper his will against any temptation which might lead him to return thereto.

16. For these reasons we think that the interests of justice do not demand his continued custody and we propose therefore to suspend these sentence totalling two years for a period of one year.

17. We are empowered under the provisions in the Criminal Procedure Ordinance to attach conditions to that order. We therefore order that the applicant, during that period of one year, will be subject to the supervision of the Director of Social Welfare.