HKSAR v. MA WAI HUNG

HCMA94/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 94 OF 2006

(ON APPEAL FROM TMCC 4091 OF 2005)

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J U D G M E N T

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1. This is an appeal against sentence.  The appellant pleaded guilty to an offence of obtaining property by deception and two charges of theft.  He was an insurance agent.  The victim was one of his long-standing clients. 

2. Across the three charges he received from her HK$12,866.  He was obliged to pay that to the insurance company.  He had got himself in financial difficulties and he acted dishonestly.  He used the money for his own purposes.

3. The magistrate took a starting point of nine months and reduced it to six months for his plea of guilty.  The sum was not insubstantial and the magistrate acknowledged that there were two breaches of trust.  One the trust of the long-standing client; one the trust of the insurance company.

4. The appellant had two previous convictions, though the conduct which led to them post-dated the conduct that led to the sentences I am considering.  One was a sentence in total of eight months for three charges of theft, which had been passed in December of 2005.  The offences there were similar to the offences here.  The magistrate quite rightly took the view that he must look to the totality to get the right sentence and imagined that it had all been dealt with at once and accordingly he ordered that of the six month sentence passed, only four months be added consecutively.  It is also a fact that the defendant’s circumstances drove him, as he told me, to commit a robbery for which he was serving 40 months. 

5. The appellant has appeared in person and presented his case very clearly and nicely to me today and I perceive that he is genuinely remorseful.  In particular, his concern for the impact that his loss of income and liberty have had on his family.  However, as I have pointed out to him, an extra four months for dishonesty of this gravity was a very fair and modest addition to his present sentence.  He asks me to put it around the other way and make two months consecutive and four months concurrent, saving himself two months.

6. I regret to say I cannot do that.  In effect to only add two months to the existing sentences for dishonesty of this nature would not be right.  It would undervalue the gravity of the conduct that involved the breaches of trust I have already referred to.

7. Accordingly, the appeal against sentence is dismissed and I confirm the sentence that was passed.