XCHRX HKSAR v. HAU PING HANG

CACC129/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 129 OF 2000

(ON APPEAL FROM DCCC 207 OF 2000)

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D E C I S I O N

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1. This is an application by the defendant for bail pending appeal. The defendant was convicted by District Judge Line on 29 March 2000 on his own plea of a charge of theft contrary to section 9 of the Theft Ordinance, Cap. 210 and was sentenced to 8 months' imprisonment. He has now lodged an application for leave to appeal against sentence and seeks to be admitted to bail pending appeal.

2. The property involved in the theft charge was shown on the charge sheet, two lots of land being Lot Numbers 1269 and 1317 in Demarcation District No. 95, New Territories, the property of a Tong in the New Territories. The theft started in June 1996 and completed on 23 September 1996. The defendant and another person under the same surname, presumably from the same lineage were trustees and managers under the New Territories Ordinance of five lots of land. In June 1996 the defendant submitted documents to the District Officer falsely representing that he and his co-manager were the sole beneficiaries of the five lots of land, and based on such representation the District Officer gave his consent to the defendant and his co-manager to transfer the beneficial interest of the two lots, the subject of the charge, to the defendant and the three other lots to the co-manager. The defendant caused himself to be the registered owner of the two lots on 23 September 1996. The matter was uncovered by the other beneficiaries and on 29 July 1998, the defendant was interviewed by officers of the ICAC and made certain admissions of guilt under caution.

3. It is very clear from the authorities cited by Mr Cheng Huan, SC, on behalf of the defendant, i.e. R v. Lee Hoi-kwong Cr App 229 [1992] and R v. Oscar Lai Kar-to Cr App 229 [1992], that for an application for bail two matters are crucial for consideration of the court, namely the time basis, as described by Bokhary JA in those authorities, and the strength of the appeal basis.

4. As far as time is concerned, I have been told by counsel for both parties that the appeal is likely to come on in about 2 to 3 months. The sentence passed on the defendant by the judge being eight months would be equivalent, upon full remission, to about 5 months and 10 days. The result is: if the application for bail is refused the defendant would have served about one half of his sentence before the appeal will be heard.

5. As far as the strength of the appeal basis is concerned, I have been referred by counsel, Mr Chung, for the respondent, to cases such as R v. Barrick, R v. Trevor Clark and Secretary for Justice v. Wong Kay-din, as to the seriousness of a theft by an employee or by a professional man in breach of trust. No doubt those cases would have similar application to the present one, although the situation of the defendant in his position was different from that of an employee.

6. Mr Cheng Huan, on behalf of the defendant, has urged me to consider the exceptional circumstances of this case to justify the point that he makes that there are good chances of the appeal against sentence succeeding. He has mentioned to me the fact that the idea of committing the theft was not the defendant's own but that of his co-manager. There was a frank admission of guilt in July 1998 when the defendant was interviewed by the ICAC; there was a frank plea of guilty at the earliest of opportunities; there was full restitution of the amount stolen and the offence was a single fall from grace.

7. What Mr Cheng emphasised is the long delay before the defendant was brought to court. He confessed in July 1998 to the offence but the trial only took place at the end of March 2000 when he immediately pleaded guilty. Mr Cheng relied heavily on the case of Secretary for Justice v. Hui Siu Man, where the court held:

"Restitution alone did not warrant a suspension of sentence, for otherwise that would be an inducement to persons to take the risk involved in such offences, knowing that they could avoid imprisonment simply by paying back the amount they had stolen."

The Court of Appeal in Hui Siu Man also pointed out that:

"The delay in prosecution of the offence, following the defendant's acknowledgement of guilt, is also an important factor to consider."

That case was an application by the Secretary for Justice to reveal the sentence which was a suspended one passed by a District judge. The court eventually took into account the very exceptional circumstances" that the delay in the prosecution of the offence, after the defendant had acknowledged his guilt, had given him the opportunity to rehabilitate himself by obtaining steady employment and to repay a very large amount of money which he would have to borrow to make restitution. Having taken into account those exceptional factors, the court refused to interfere with the suspended sentence.

8. From the facts in this case, as mentioned by the judge in his reasons for sentence, it appears that all these points that Mr Cheng has drawn by attention to, namely the readiness to plead guilty, the idea of the theft coming from the co-manager, the previous good character of the defendant, the delay of the trial for about 20 months, etc. had been considered by the judge when he adopted a starting point of 21 months, reduced it by one third, to take into account the guilty plea, and reduced it further by 6 months in order to take into account all these circumstances, these mitigating circumstances.

9. I must say that this is a case which is different from a case at trial where the court, after considering all these circumstances, may be well justified to pass a suspended sentence, but this is an appeal and for the time being I would have to consider the chances of appeal. The appeal against sentence can only succeed if the sentencing judge is shown to have erred on principle or the sentence that he passed is manifestly excessive. Since the judge has considered fully all those circumstances in passing what must be viewed to be a very lenient sentence on the defendant, I am afraid that for the time being I am not at all satisfied that there are good chances of the appeal.

10. In the circumstances, the only conclusion that I can reach is to refuse the application for bail.