HKSAR v. LAW TAK HIM

HCMA 533/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 533 OF 2003

(ON APPEAL FROM WSCC 637 OF 2003)

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J U D G M E N T

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1. On 7 May 2003, this Appellant appeared before T. S. Jenkins Esq. in the Magistrate's Court at Western on eight charges of forgery and one charge of theft. He pleaded guilty to all nine charges. The Magistrate sentenced him to a total of five months' imprisonment by way of concurrent terms of that duration on each count. He now appeals against sentence.

2. The offences of forgery were committed on various dates during the period from September 2001 to May 2002. The offence of theft was committed between January and May 2002. The Appellant had been employed by Pacific Asia Distribution Limited (PAD) as a salesman.

3. The circumstances of the nine offences were summarised by the Magistrate in his Statement of Findings as follows:-

" The admitted facts revealed that PAD was engaged in the supply of stationery in Hong Kong and employed the defendant as one of its salesmen. In May 2002 it came to light that the defendant had withdrawn a large amount of inkjet cartridges and purportedly sold them to Hung Cheong Packing and Stationery Company ("HCPS") without accounting to PAD for the proceeds of sale.

Subsequent police enquiries revealed that the defendant had forged the PAD invoices the subject matter of Charges 1-8 and produced them to the staff of the warehouse of PAD to withdraw the inkjet cartridges. The defendant had then delivered the same to HCPS and in accordance with those invoices HCPS had paid the defendant over a 5 month period a series of cash cheques (17 in total) amounting to HK$94,360. The defendant had not accounted to PAD for the cheques and thereby committed the theft charge ("Charge 9")"

4. As to the 10-month starting point which the Magistrate adopted, he explained as follows:-

" Given that the production of the forged invoices was part and parcel of the defendant's modus operandi I took a global view in sentencing. I adopted a starting point of 10 months imprisonment concurrent on the 9 offences. I did so based upon the guidelines for breach of trust cases in the English case of Trevor Clark 2 Cr. App. R 137 which has been followed in Hong Kong by HKSAR v Leung Shuk-man CACC 230/2001."

5. The Magistrate then gave a 50% discount, saying this:-

"I was prepared to discount the 10 months starting point by a generous 50% to take into account the defendant's pleas and the fact that he had made full restitution and the only consideration that remained was whether I should suspend the resulting period of imprisonment (5 months)."

6. As to a suspended sentence, the Magistrate discussed the Court of Appeal's decision in Secretary for Justice v Hui Siu-man, Application for Review No. 10 of 1998 (23 November 1998). After doing so, the Magistrate rejected the option of a suspended sentence, saying this:

"Taking all these matters into account I was not persuaded that there was anything exceptional in the defendant's case to suspend the concurrent 5 month terms of imprisonment and I accordingly sentenced the defendant to immediate terms."

7. Finally, the Magistrate said this:

"In the alternative Mr. Tang sought to persuade me to call for a CSO report. I advised him however that I did not consider it appropriate in the defendant's case given the seriousness and multiplicity of the offences and in any event CSO at the time of sentencing had in practical terms been suspended due to the SARS epidemic."

8. The ground of appeal put forward on the Appellant's behalf is that the sentence of five months' imprisonment passed on him is "manifestly excessive and/or wrong in principle". Lengthy particulars to that ground are given in the "Perfected Grounds of Appeal against Sentence" filed on the Appellant's behalf.

9. Paragraph (1) of those particulars reads as follows:-

"Since difficulties were created to the Community Service Order Scheme by the SARS epidemic, the Magistrate wrongly failed to consider calling for a report as to the Appellant's suitability for such; and if the Appellant was found to be suitable but could not enter the scheme due to the epidemic the Magistrate should have gone on to consider whether that said circumstance enabled the sentence of imprisonment to be suspended, a practice which was adopted by other Magistrates at that time."

10. Mr. Grounds appearing for the Appellant argues (on the basis of what was said by the Magistrate at the sentencing stage) that the Magistrate's statement in his Reasons for Sentence that the seriousness and multiplicity of the offence made community service inappropriate was an afterthought. In my view, it would not be appropriate to treat the Magistrate's Reasons for Sentence as anything other than full and frank. I treat the Magistrate as having regarded community services as inappropriate for those reasons. In my judgment, he was justified in taking that view.

11. Paragraph (2) of those particulars reads as follows:

"The Magistrate wrongly

(a) failed to give due and sufficient credit to the complete restitution made by the Appellant, much of which came from the Appellant's monthly salary savings made prior to being charged;

Authority: Ma Kim Hung Cr. App. 33 of 2002

(b) failed to consider in a proper manner or at all the following factors which indicated that the case was exceptional:

(i) the Appellant's immediate admissions of guilt to his employer on 30.5.2003;

(ii) the Appellant's immediate admissions of guilt to the Police on 3.9.2002;

(iii) the Appellant's immediate admissions of guilt to the Court on his first appearance on 7.5.2003;

(iv) that the Appellant had made determined and successful efforts to fully recompense his employer by making full restitution of all monies taken;

(v) that items (i) - (iv) manifested complete remorse at a level very much above a late plea of guilt without more which in itself often results in a "one third" discount of sentence;

(vi) that the Appellant had a clear record;

(vii) that the Appellant had a good background (leaving aside the instant offending) and a good work record which included the arrest of a thief on 30.12.2002;

(viii) that the total sum of money taken ($94,360 at transcript 7 and 22) was in the lowest of the breach of trust sentencing brackets and was well short of the sum taken by Hui Siu Man ($631,663 at transcript 29);

Authorities:	Trevor Clark [1998] 2 Cr. App. R. 137;
	Hui Siu Man, Ricky A. R. 10 of 1998;

(ix) that the Appellant's employer ("PAD") did not seem to have been unduly or particularly adversely affected by the Appellant's actions;

(x) that the Appellant had demonstrated a desire to abide by the law and contribute to Society by his satisfactory employment with Manning's after his dismissal by PAD and had thus taken the opportunity to rehabilitate himself;

(c) approached the sentencing of the Appellant by seeking to distinguish Hui Siu Man's case rather than considering in a proper and appropriate manner all the positive aspects of the Appellant's behaviour with a view to avoiding the imposition of an immediate custodial sentence on a first offender who was both capable and desirous of being rehabilitated;

(d) failed to consider that Hui was obviously a mature man and had a considerable length of service behind him and was in a supervisory position all of which were aggravating factors when compared with relative youth and lack of maturity. In short breach of trust fraud becomes less acceptable to the older, more experienced, more responsible a person becomes;

(e) failed to properly consider or conclude that the delay in this case was not in reality caused by the Appellant's actions; but rather it was due firstly to the lengthy period of time it took to arrest the Appellant and secondly the lengthy period of time to obtain legal advice;

(f) failed to consider the advice given in Li Wan Kei & Another Cr. App. 13 of 1997 at p. 5 namely:

"Nevertheless the judge decided that they were entitled to the usual one-third reduction from the starting point for their pleas. It may be that in other cases in this field if there is a full indication of an intention to plead guilty at the very outset which avoids all the elaborate preparation and expense for trial, this also will be reflected in the sentence passed.""

12. In my judgment, the Magistrate did not make any of the errors which it is said in these particulars that he made.

13. Paragraph (3) of those particulars reads as follows:-

"So that the immediate sentence of 5 months imprisonment was manifestly excessive and/or wrong in principle and ought in the circumstances pertaining at the time of sentencing to have been suspended; and now ought to be suspended with a manifestly lesser term of imprisonment imposed or have a community service order issued in its place."

14. In my judgment, the sentence was neither manifestly excessive nor wrong in principle and the Magistrate was justified in sentencing the Appellant as he did.

15. Accordingly, this appeal against sentence is dismissed.