HKSAR v. LAM SHUK PING

CACC 57/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 57 OF 2003

(ON APPEAL FROM DCCC 1286 OF 2002)

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J U D G M E N T

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Hon. Yuen JA (giving the judgment of the Court):

1. This is an application for leave to appeal from a sentence of 2 years and 9 months imprisonment imposed by Judge Sweeney in the District Court in respect of 24 counts of theft of sums amounting to slightly over $1m. and 1 count of attempted theft of a sum of $68,000 odd.

Facts

2. The Applicant was an accounts clerk who had been working for her employers for some 3 1/2 years when she began to commit these offences.

3. The Applicant forged the counter-signature on a number of her employers' cheques and deposited them into a bank account which she had opened, using a name identical to that of a firm with which her employers had business dealings. In the course of one year, she forged 24 cheques, obtaining a total sum of slightly more than $1.055m.

4. In August 2000, the bank raised queries about the signature on a further cheque of $68,000 odd. This raised the employers' suspicions and when the Applicant was questioned, she confessed to the offences in writing. Her employers dismissed her but agreed not to report the matter to the police provided she repaid the money within 3 months.

5. After repaying $325,000, the Applicant defaulted in March 2001. Negotiations for repayment failed and she says her former employers set debt collectors on her. Eventually, in September 2001, her former employers reported the matter to the police.

Sentence

6. The Applicant was arrested and admitted the offences under caution. She pleaded guilty in the District Court. After a plea in mitigation by her counsel, the judge sentenced her as follows:

(A) on the 1st charge, from a starting point of 3 years, a reduction of 1/3 was applied to reflect her plea of guilty, resulting in a sentence of 2 years;

(B) on the 2nd charge, also from a starting point of 3 years, again a reduction of 1/3 was applied to reflect her plea of guilty, resulting in a sentence of 2 years; however, the judge ordered 9 months of this sentence to be served consecutively, and the balance to be served concurrently, with the sentence for the 1st charge;

(C) on the rest of the charges, the judge sentenced her to 2 years imprisonment on each, concurrent with the sentence for the 1st charge.

7. Although the judge did not mention, in respect of the rest of the charges, that he had also taken a starting point of 3 years and reduced it by 1/3 to reflect the plea of guilty, it can be inferred from the sentence he arrived at (2 years) - which was similar to the sentences in respect of the 1st and 2nd charges - that that was in fact the case, and nothing turns on this.

Appeal

8. Miss Corinne Remedios, counsel for the Applicant on appeal, has submitted first, that the sentence was manifestly excessive and secondly, that the judge had failed to give the Applicant a specific discount to reflect her partial restitution of the money stolen.

Starting Point

9. In respect of her first point, Miss Remedios submitted that an overall sentence of 3 years as a starting point was within the guidelines for breach of trust offences involving a sum of about $1m., according to the guidelines set out in R v Trevor Clark [1998] 2 Cr App R 137, which have been applied by the Court of Appeal in Hong Kong in Secretary for Justice v Wong Kay-din CAAR 7/1998 and other cases.

10. However, she submitted, when the judge ordered that 9 months of the sentence for the 2nd charge be served consecutively, the judge had in effect adopted an overall starting point outside the range set out in Clark and adopted in Wong Kay-din, as the total sentence that would have to be served of 33 months (after a discount of 1/3 for the plea of guilty) meant that the overall starting point was more than 4 years.

11. As a matter of calculation, we think Miss Remedios must be right. Further, with respect to the judge, it is difficult to see why he ordered that 9 months for the 2nd charge be served consecutively with the sentence for the 1st charge, when both offences were committed on the same day and in the same way, so that one would normally have expected the sentences for these charges to be served concurrently.

12. Miss Lynda Shine, counsel for the prosecution, has asked us to take into account the fact that before pronouncing sentence, the judge had expressed some reservations about the appropriateness of sentencing guidelines in other jurisdictions, and had specifically referred to the decision of the Court of Appeal (Stuart-Moore VP and Yeung J) in HKSAR v Chan Kai-chung CACC 12/2001, which he said bore "striking similarities" to the present case, viz. - (1) the defendant was also an accounts clerk, (2) he had also been entrusted with pre-signed blank cheques by his employers, (3) he also embezzled just over $1m, (4) there were also 20 charges of theft, (5) the defendant had pleaded guilty and (6) he also had a clear record. In that case, the Court of Appeal held that the proper overall starting point was 4 1/2 years, and reduced it by 1/3 to 3 years to reflect the plea of guilty.

13. Chan Kai-chung is indeed similar to the present case, with the only distinction being the period over which the offences were committed. In Chan Kai-chung, the 20 offences were committed over a period of 4 years. A systematic defrauding of an employer committed over a long period of time obviously constitutes an aggravating factor in sentencing. It was probably for this reason that the sentence in Chan Kai-chung was higher than the suggested range in Clark and Wong Kay-din.

14. In the present case, the judge did not in fact adopt an overall starting point of 4 1/2 years as in Chan Kai-chung.

15. When sentence was pronounced, the judge expressly referred to a starting point of 3 years - although he did not specify whether that was an overall starting point, or a starting point for each charge, presumably it must have been the former, as a starting point of 3 years for stealing $34,184 (for the 1st charge) and $23,940 (for the 2nd charge) would have been clearly excessive by any standards.

16. It must therefore be assumed that the judge was referring to an overall starting point of 3 years - in other words, adopting the Clark and Wong Kay Din guidelines. In our view a 3-year starting point in the present case was appropriate, but by sentencing the Applicant to serve 9 months of the sentence for the 2nd charge consecutively with the sentence of 2 years for the 1st charge, thereby giving an overall sentence of 33 months after a 1/3 discount for a plea of guilty, the overall starting point adopted in fact was over 4 years. That was substantially beyond the Clark and Wong Kay-din guidelines the judge was adopting. Accordingly, the overall sentence of 2 years and 9 months appears to be manifestly excessive and an overall sentence of 2 years (after the discount for the plea of guilty) would have been appropriate.

Discount for restitution

17. As for Miss Remedios' second point, it is well-established that the court should give a specific discount to reflect restitution. In paragraph 17 of his judgment, the judge did say that "some credit will be given for partial restitution", although he did not consider it to be a strong mitigating factor in the present case. Having said that, however, no discount was in fact given for restitution. As noted above, the judge began with a starting point of 3 years and only gave a 1/3 discount to reflect the plea of guilty.

18. In HKSAR v Leung Shuk Man CACC 230/2001, Stuart-Moore VP noted that if "a specific discount was not given for the payment of compensation or restitution, there would be no advantage to an offender who has repaid some or all of the ill-gotten gains to the victim, over and above the one-third discount the offender could necessarily expect to receive for a timely plea of guilty".

19. In Leung Shuk-man, the defendant had through her family members repaid the entire sum stolen ($430,000) before she was charged. She was given an overall discount of 50% on the totality of her sentence. As the starting point was 36 months (originally reduced to 24 months for her plea of guilty), the actual sentence on appeal was reduced to 18 months.

20. In the present case, the Applicant has made partial restitution of $325,000 (or about 30% of the sum stolen). In mitigation it was said that $300,000 had been used to defray credit card debts which she owed when she started the course of thefts, and the rest for a down-payment and mortgage instalments for a flat which has been recovered by the mortgagee bank after she was dismissed. Miss Remedios submitted that although restitution was only partial, that was all that the Applicant had. Even if that were the case, however, the fact remains that the victims have not been fully recompensed.

21. Although one should refrain from adopting too arithmetical an approach to sentencing, it would be consistent with the discount in Leung Shuk-man for there to be an overall 40% discount on the totality of the sentence here.

Order

22. Accordingly, the application for leave to appeal against sentence is granted, the application treated as the appeal and the appeal is allowed. In respect of each charge, the sentence is reduced to 21 months imprisonment to be served concurrently.