HKSAR v. YEUNG WING SHUN WILSON

CACC312/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 312 OF 1999

(ON APPEAL FROM DCCC 291 OF 1999)

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. On 31st May 1999, the Applicant was sentenced to a total period of sixteen months' imprisonment for five offences of forgery and five offences of theft, following his pleas of guilty to all those charges before Judge Day in the District Court. He now seeks leave to appeal against sentence.

2. Originally the Applicant had faced twenty-two charges made up of eleven offences of forgery, ten of theft and one of using a false instrument. However, the charges to which the Applicant pleaded not guilty were not pursued, and these were left on the file, not to be proceeded with without leave, by common consent. In this context, in the court below, all parties looked upon the pleas of guilty as being sample counts totalling in themselves $1,888,500, but representative of the full losses of $3,283,500 alleged in the original charge sheet when twenty-two charges were before the court. The Statement of Facts went unaltered as to the larger amount and this was not disputed.

3. Based upon what counsel on both sides said in the course of the hearing, the judge in passing sentence (at p.23D in the Appeal Bundle) said:

"I am to sentence you for a breach of trust involving nearly $3.3 million for offences which were well-planned and executed over a five month period and which you committed for greed.

I propose to take a starting point for the 3rd charge, that is theft, of 3 years' imprisonment. You pleaded guilty at the outset and have co-operated fully from the start of the enquiry and will get a discount of a third from that sentence.

You have to be sentenced for several thefts and some forgeries. They are samples for a total stolen of nearly 3.3 million. They are part of a series of thefts although the same parties are involved and I believe, in this case, that concurrent sentences are justified and feel that the overall criminality of what you have done is reflected by that sentence."

4. This was, as Mr. McWalters is the first to concede, an erroneous basis for sentencing. There are a number of authorities about which he reminded us establishing that, where an offender has been convicted or has pleaded guilty in respect of one or more related offences, he must not be sentenced on the basis that he is guilty of further offences of which those charged are merely representative or sample charges. The rationale for this is that it is a fundamental principle of sentencing that an offender should not be sentenced for a crime of which he has not been convicted or has not admitted by either pleading guilty to it or by asking to have it taken into consideration. In the light of the authorities cited, which included R v Chow Tat-ming, (1997) HKLRD 353 and R v Choy Wing-chung (unreported) CACC 579/95, this court is therefore left to examine the circumstances in order to arrive at an appropriate sentence.

5. The trial judge could not have summarised the case against the Applicant more concisely. In his Reasons for Sentence, at p.20, he said:

"Very briefly, what happened was this: you were employed by the Hong Kong Phonecard Company and part of your duties was to buy commemorative phonecards from a subsidiary of Hong Kong Telecom. I gather that they were subsequently being resold. Over a period of six months the Telecom subsidiary delivered 510,000 phonecards and you paid their invoices yourself. Forging documents as you went, you secured the repayment to yourself of the amounts in the charges and in each case you overcharged your own company by the amount in the theft charge"

Later at the top of p.21 in the bundle, he went on to say:

"You were employed as a general manager of the company for your expertise and lost no time in commencing a succession of forgeries and thefts.

You were employed in January 1997 and the first offence was in February 1997. The offences were not impromptu, your scheme was well planned and executed with you purporting to use a third company as agent to cover your tracks. This was a gross breach of trust embarked upon almost immediately after you were employed and continued with for five months until you were dismissed."

6. As the trial judge went on, at p.22A to observe, the Applicant was: twenty-nine, single and lived with his father in a rented flat. The judge said:

"You are a partner in a business selling models. You have a clear record and that should be reflected in your sentence. I have been shown a bundle of references from your family, from friends and associates and from charities and other worthy bodies which leave me in no doubt that these offences will not be repeated. These offences apart, you are clearly a good and generous man."

A little later the judge added:

"There has been a delay in the prosecution of this case of some 12 months. No one seeks to level any blame for the delay, but the plain factors are that you were arrested in February of 1998 and were not charged until March 1999, having made a full and frank admission at the outset. The result is that the shame and worry has been hanging over your head for over a year.

In addition, you have repaid the money not, I note, immediately, but today. You borrowed from friends and relatives to raise the money and, as you are not a man of means, this will have been difficult."

7. Having regard to all of these factors, the judge took a starting point of three years' imprisonment for the theft in charge 3, and reduced it by a third to two years' imprisonment to allow for the guilty plea. A further reduction of eight months was made in order to reflect (1) that the Applicant had made restitution, (2) that there had been a long delay between the time of arrest and charge, and (3) the Applicant's good character. The sentence on charge 3, therefore, became sixteen months' imprisonment, and the judge went on to impose concurrent sentences of sixteen months on all the remaining charges.

8. Against that background, Mr. Selwyn Yu, who also appeared on behalf of the Applicant in the District Court, has put what amounts to a single ground of appeal before us. He realistically did not take issue with the judge's starting point and we can say immediately that we also consider that the starting point was correct, even on the reduced monetary figures upon which sentence ought to have been based. He submitted, in effect, that the overall sentence was too long as the judge had failed to give sufficient consideration to the strong mitigating factors, when they were taken together, of full restitution, delay and good character following the principles which emerged from a similar case in Secretary for Justice v Hui Siu-man, Rickey, (1999) 2 HKLRD 236.

9. The crux of Mr. Yu's submission was that an allowance of only eight months' imprisonment for these mitigating factors, when taken in combination, was not a sufficient additional discount to that which had been allowed for the plea.

10. An earlier proposed ground of appeal, that the sentence should have been suspended, was abandoned. However, in the court below, Mr. Yu had argued that if a suspended sentence was appropriate in Hui Siu-man's case, it was equally appropriate in the Applicant's case. The judge rejected that argument and Mr. Yu has not thought it right to renew it here. In the former case, a suspended twenty-one month sentence had been imposed for a number of thefts amounting to about $632,000 committed by the supervisor of a department within a bank. The respondent in that case demonstrated genuine remorse and made immediate restitution of the stolen proceeds within two weeks of the discovery of the losses. He was then subjected to a delay of over twelve months without knowing whether or not he would be charged. By the time the matter reached court, the respondent had fully rehabilitated himself. The matter was finally decided by this court on 5th November 1998, about eighteen months after restitution had been paid by the respondent. This court confirmed that on the facts in Hui Siu-man's case the suspended sentence was not inappropriate.

11. Mindful of these matters, the trial judge in the application presently before us, when confronted with Hui Siu-man, commented on the legal principle to be derived from that case. This was that whilst neither restitution nor delay would, standing alone, constitute a "very exceptional circumstance" such as to justify the making of a non-custodial sentence, under R v Barrick, (1985) 81 Cr.App.R. 78, they could do so when taken together on the facts of that case. The trial judge then correctly observed that Hui Siu-man's case was not a guideline for similar cases. The sentence was merely what was appropriate in that case.

12. The trial judge also correctly recognised that a person cannot "buy his way out of prison" although a person who makes repayment should be properly rewarded.

13. It is sufficient to repeat that the starting point taken by the judge of three years cannot be and is not criticised for these serious offences. The discount of one-third was a proper reflection of the pleas of guilty. The additional eight months' reduction in sentence, bringing the period to be served to sixteen months from a starting point of thirty-six months represents, as Mr. McWalters illustrated, a total discount of 55%. This has only to be stated, to be seen as an extremely generous discount. We can find no justification to interfere with the sentences imposed.

14. Accordingly, the application is dismissed.