HKSAR v. TONG YEE CHUN

[English Translation – 英譯本]

HCMA 475/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 475 OF 2014

(ON APPEAL FROM ESCC 1133/2014)

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REASONS FOR JUDGMENT

1.  The appellant was charged with one count of “theft” (Charge 1) and one count of “obtaining property by deception” (Charge 2), contrary to sections 9 and 17(1) of the Theft Ordinance, Cap 210 of the Laws of Hong Kong respectively.  On his own plea, the appellant was convicted of both charges by Magistrate Mr David Chum in the Eastern Magistrates’ Courts.  He was sentenced to 4 months’ imprisonment in respect of Charge 1, and 4 months’ imprisonment for Charge 2 with 2 months of which to run consecutively to the sentence imposed on Charge 1, making a total of 6 months’ imprisonment. The appellant appealed the sentence.

2.  After the hearing, I allowed the appeal with the sentence set aside and substituted with the following:

Charge 1: 3 months’ imprisonment;

Charge 2: 3 months’ imprisonment with 1½ months of which be served consecutively to the sentence imposed on Charge 1, making the total term 4½ months.

3.  I also ordered the said sentence of 4½ months’ imprisonment be suspended for 12 months, for reasons which I set out below.

Facts of the case

4.  Mr Jonathan Lin, Senior Public Prosecutor, on behalf of the respondent set out the facts of the case in his written submission, which this court has basically adopted.

Facts of the case

5.  At the material time, the appellant was a solicitor practising in Hong Kong.  He then worked as a consultant at Messrs Raymond Chan, Kenneth Yuen & Co (“the Firm”).  The appellant was required to deposit legal fees received from clients into a designated bank account of the Firm for the purpose of profit apportionment among the lawyers of the Firm.

6.  On 13 June 2012, Mr Cheung, PW1 of the present case, was charged with an offence of employing a person not lawfully employable, contrary to section 17I(1) of the Immigration Ordinance, Cap 115 of the Laws of Hong Kong.  Through referral, Mr Cheung came to know the appellant, and upon the appellant’s invitation he signed an engagement letter at the Firm to engage the appellant as his legal representative to deal with matters related to the above charge.  Legal fees was initially agreed at $30,000 and subsequently revised to $24,000 upon negotiation.  At the appellant’s request, Mr Cheung first paid $1,000 in cash, but the appellant did not issue him any receipt.

7.  On 3 July 2012, when Mr Cheung discussed his case with the appellant at the Firm, the appellant insisted that Mr Cheung had to pay the balance of his legal fees of $23,000 in cash and did not accept his suggestion of paying the Firm by cheque.  Mr Cheung had no alternative but did as what he was told.  The appellant did not issue any receipt to him.

8.  The appellant never disclosed his transaction with Mr Cheung to the Firm, and the Firm had no record of any information, such as correspondence, engagement letter or payment record, related to Mr Cheung’s case.  The appellant kept the Firm in the dark and simply appropriated the legal fees of $24,000.  Having regard to the arrangement of revenue sharing, the amount of which the appellant had defrauded the Firm was in fact $9,600.

9.  On 10 July 2012, the appellant phoned Mr Cheung and falsely claimed that the Immigration Department asked for a “court fee” of $2,000 for changing the charge under section 17I(1) to a less serious one, namely an employer failing to inspect documents of a new employee in contravention to section 17J(1) of the Immigration Ordinance.  The appellant also told Mr Cheung that he had already acceded to the request of the Immigration Department in view of the small amount involved.  On the next day, he again phoned Mr Cheung and falsely claimed that the “court fee” requested by the Immigration Department was in fact $3,000.

10.  On 13 July 2012, the appellant and Mr Cheung met at the Shatin Magistrates’ Courts for answering the plea.  Before entering the court room, Mr Cheung was deceived into giving the appellant $3,000 in cash at his request for settling the “court fee” that the Immigration Department asked for.

Mitigation

11.  Mr Bruce Tse, Counsel for the appellant, set out in his written submission succinctly the submission in mitigation:

“4. The appellant was aged 67 with a clear record at the time of sentence. He is married. His wife is a housewife. His eldest daughter has got married and the youngest son is an undergraduate student of the Chinese University of Hong Kong. Starting from 1966, he had worked in the government as a clerical officer and a judicial clerk; and after being admitted as a solicitor in 1980, he has been an assistant prosecutor of the Legal Department, a deputy magistrate and a solicitor in private practice.

5. The defence has submitted in mitigation that the appellant committed the offences mainly because of a stupid and wrong decision made out of momentary bewilderment. At the material time, the appellant was not that well-off financially. He was earning a fixed income of only about $30,000 odd per month. Apart from giving $20,000 to his wife each month for household expenses, he also needed to pay for his younger son’s tuition fees and sundry charges in the sum of $150,000 each year. Moreover, the appellant had been diagnosed as having a prostate problem and advised by the doctor to have an operation which involved $100,000 to $200,000. He could not make both ends meet but found it difficult to talk to and seek help from his family or friends and became extremely frustrated and very depressed.

6. In addition, the defence has submitted a number of letters for mitigation, some of which are written and signed by the appellant’s law classmates in the University of Hong Kong and also a number of senior legal practitioners and famous characters in the community, including Mr Warren Chan, SC, Mr Lawrence Lok, SC, Mr Albert T da Rosa Jr, solicitor, Ms Grace Fung, solicitor, Ms Yvonne Chua, solicitor, Mr Paul Chung, solicitor and Mr Winston Leung, retired magistrate and also some pastors of the church and others.”

12.  Before me, the defence has also submitted a mitigating letter written for the appellant by Mr Clarence CK Cheng who is living in Canada.  The letter mainly reveals that Mr Cheng and the appellant were classmates in the university and they have known each other for over 40 years, and that he was shocked to learn that the appellant had committed the offences.  Mr Cheng also tells the court that the appellant has been a kind-hearted person and often served the less privileged in the community.  He asks me to be lenient to the appellant.

Reasons for sentence

13.  The magistrate, after setting out the facts and submission for mitigation in his reasons for sentence, had this to say:

“Sentence

18. I accept that the defendant, a senior member of the legal profession, has a decent background. He has been deeply loved and respected by colleagues in the profession and those working together with him and supported by his family, friends and members of the church. The defendant’s background is even better than that of those defendants in the precedent cases relied upon by the defence. Moreover, the defendant’s clear record is also a factor to be considered for a lenient sentence.

19. In addition, the defendant’s frank admission has demonstrated his remorse, and the full restitution of the monies involved in the theft and deception before formal prosecution has minimized the loss suffered by the Firm. These are also factors to be considered for a lenient sentence.

20. Nevertheless, this case involves breach of trust. Generally speaking, the court takes into account the amount of money stolen or defrauded in passing sentence. In fact, the amount involved is only one of the major factors, but not the only one, to be considered. In my view, the most important consideration should be how the offences in question were committed. According to the case HKSAR v Lo Kwok Hung (transliteration) (unreported, CACC 82/2001, 7^th June 2001), in considering the sentence in a case involving breach of trust, apart from the amount of money involved, the court also has to pay regard to:

(1) the quality and the degree of trust reposed on the offender by the company, including his rank in the company;

(2) the period over which the theft and the fraud have been perpetrated;

(3) the use to which the money or property stolen was put;

(4) the effect upon the victim;

(5) the impact of the offence on the public or public confidence;

(6) the impact on fellow colleagues or shareholders;

(7) the effect on the offender himself;

(8) personal history of the offender;

(9) those matters of mitigation peculiar to the offender, such as illness, the pressure that he was under, or the heavy responsibilities that he had to bear; and where, as sometimes happens, there has been a long delay, say as long as two years, between his being confronted by his professional body or the police and the commencement of his trial;

(10) whether he has given any assistance to the police.

21. The defendant in this case is a consultant in a law firm. As the court understands, there is no sharing of revenue with consultants, as opposed to partners, the defendant could still nevertheless share revenue with the Firm for the business acquired, showing that the trust placed on the defendant by the Firm was greater than that on staff of other ranks. The Firm ought to have believed that the defendant would not breach the trust between each other. Furthermore, in Charge 2, the defendant was the victim’s legal representative at the material time, hence the victim ought to have trusted him wholly. Therefore, in my view, the quality and degree of trust enjoyed by the defendant in the two offences are much higher than that in other cases.

22. The defendant himself is a solicitor in practice and has even been appointed as a deputy magistrate. In my view, he ought to have been very conscious of being law-abiding, beware of the importance of observing the law and should not violate it in any way. Moreover, the money involved in this case was the legal fees paid by the defendant in a criminal case. What is worse, Charge 2 involved the defendant taking advantage of the legal procedures and the ignorance of the public to those procedures to request the victim to make an extra payment called “court fee”. What the defendant did has in fact caused an impact on the trust that the public have placed on legal practitioners, and damaged the image and reputation of the legal practitioners who handle cases lawfully. Therefore, the court must consider a heavy and deterrent sentence.

23. In mitigation, the defence urged the court to accept the cases that they relied upon in considering the special circumstances in the present case, including the minimal amount of money involved and the background against which the defendant committed the offence, and suggested that the court should not simply apply the cases mechanically in sentencing.

24. I accept the defence submission that the money involved in Charge 1 was about $9,600 and in Charge 2 only $3,000. Nevertheless, these two sums are not as minimal as the defence referred to in the precedent cases so that the court can treat them as exceptional circumstances.  Furthermore, the money in question was to be used for paying legal fees by the defendant who was facing a criminal trial, and he might just have to pay with no choice with a view to having an effective defence. The money in question would not be minimal to him.

25. On the other hand, having heard the mitigation put forward by defence counsel, I find the suggestion that the defendant committed the offence because of financial pressure is not exceptional circumstances at all. The defendant earned $30,000 per month and out of which paid $20,000 for household expenses and $10,000 for his son’s tuition fees in the university. I believe that such situation is very common and is not exceptional circumstances.

26. In view of the above reasons and the nature of this case, I find no special reason in the present case for the court not to consider an immediate custodial sentence, which is in fact appropriate.”

14.  The magistrate then considered several precedent cases and said,

“33. I have considered the above cases and all matters concerning the defendant’s background and the circumstances, and in my view, in respect of Charge 1, the defendant should be sentenced to 6 months’ imprisonment which is reduced by one-third on his guilty plea, making it a term of 4 months’ imprisonment. In respect of Charge 2, the sentence should be 6 months’ imprisonment. The defendant is entitled to a one-third discount on his plea, making it a term of 4 months. The court has considered that although the two offences were committed at different times, they involved the same criminal matter, therefore, the court orders 2 months in the sentence for Charge 2 to run concurrently with the 4 months for Charge 1, making it a total of 6 months’ imprisonment.”

Grounds of appeal

15.  Mr Bruce Tse, Counsel for the appellant, submitted the following grounds of appeal, contending that the immediate custodial sentence of 6 months was manifestly excessive and/or wrong in principle:

“(a) The magistrate should have accorded appropriate weight and/or given appropriate reduction in sentence because the appellant had ‘made full restitution at an extreme early stage (before charges were laid)’;

(b) The magistrate erred in finding that the appellant committed the offences solely because of financial pressure and hence ignoring or failing to give appropriate weight to the stress and pressure that the appellant was mentally and emotionally subject to at the time in question;

(c) The magistrate, in the absence of sufficient or good reason and basis, erred in finding that for the appellant, ‘the quality and degree of trust enjoyed are far much higher than that in other cases (involving breach of trust)’;

(d) The magistrate erred in thinking that ‘deterrent sentence’ was necessary in the present case;”

My consideration

16.  It is a serious offence that the appellant has breached the trust reposed on him and made use of his professional expertise to defraud the victim who had no or little knowledge about law. Relatively speaking, the offence in which the appellant stole money from the law firm is less serious.

17.  As to whether the court is required to impose a deterrent sentence, in my view, although the present case shows that a legal practitioner’s conduct has caused harm to his client and damage to the image of his profession, the court does not have to impose a deterrent sentence.  Furthermore, the appellant is no longer qualified to practise after the commission of the offences, and no deterrent sentence is necessary in his case.

18.  I agree what the Court of Appeal has said respectively in Leung Pui Shan[1] and Yeung Kwun Kuen[2]: Sentencing is an art which must be moulded not only to the offence but also to the offender.  In passing sentence, the court has to consider the background of individual offender, the circumstances in which the offence was committed and the reasons leading to the offence.  The court should not be over “mechanical” and needs to do individual justice to the offender.

19.  In saying that the appellant had “committed the offence because of financial pressure”, the magistrate appeared to be paying no regard to the diagnosis of prostate problem and his need for medical treatment.  The appellant’s unmentionable illness has definitely added burden to the financial pressure that he had already been under, and what cannot be ignored is that the stress caused to the appellant emotionally and psychologically by the illness was not insignificant.

20.  The appellant was already 67 at the time he committed the offences.  According to those who know him well, the offences he committed were completely inconsistent with his character and they were all shocked.  Unfortunately the appellant had failed to lower his self-esteem and seek help from his family and friends before committing the offences.  Viewing all the facts of the case as a whole, in particular the amount that the appellant had defrauded of his “client” being $3,000, one can see that he was under such financial pressure and mental stress and feeling so desperate that he took the risk and carried out the act which was completely against his character.

21.  I am of the view that the magistrate in sentencing has failed to give sufficient consideration on the impact of the medical condition on the appellant.

22.  The appellant had made full restitution before prosecution was formally brought against him.  The magistrate in paragraph 19 of his reasons for sentence stated that full restitution was another mitigating factor, however, when he in paragraph 33 adopted 6 months as the term of imprisonment, he made no mention of taking into account the above mitigating factor, nor did he, after applying the one-third discount on guilty plea, give any further reduction for the appellant’s full restitution.

23.  Making full restitution before formal prosecution was brought is a strong mitigating factor and warrants a reduction (together with the discount for guilty plea) up to 50%. (Cases for reference: Leung Shuk Man[3], Sherwood Kwok[4]andChui Kwok Hin Wilson[5])

24.  Since the magistrate has made the above errors in principle, I am required to reconsider the sentence.

25.  I have considered that the appellant’s first offence took place when he was already 67, and it was because of the stress caused by unmentionable illness and financial pressure that he acted out of character and committed the offences in the present case.  Before committing the offences, he had all along been a righteous man with good character.  His guilty plea reflects his remorse.  He has full support from his family and many friends. In my view, the starting point should be 6 months’ imprisonment for both charges (Charge 2 involving less money but more serious facts than that of Charge 1).  The appellant has frankly pleaded guilty and is entitled to a one-third discount in sentence.

26.  Making full restitution before formal prosecution was brought is a strong mitigating factor, and hence a reduction of 50% should be applied, making the term one of 3 months’ imprisonment.

27.  Although the two offences originate from the same criminal case, their modus operandi and nature are different, and hence the terms of the sentence should not be wholly concurrent.  In my view, it is appropriate to have 1½ months in the term of Charge 2 and the 3 months in that of Charge 1 to run consecutively.

28.  It is also my view that having taken into account all the circumstances —— in particular that the appellant contravened the law out of character at his advanced age, and that he was subject to tremendous stress at the material time, exceptional leniency could be given tosubstitute the “immediate” custodial sentence with a suspended prison sentence.  I also find that a suspension of 12 months would be appropriate.

29.  For the above reasons, I have allowed the appeal against sentence, set it aside and substituted it with a total term of 4½ months’ imprisonment suspended for 12 months.