HKSAR v. WONG YUN CHUEN

HCMA 1101/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1101 OF 1998

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J U D G M E N T

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1. This is an appeal against sentence imposed upon the appellant who pleaded guilty at North Kowloon Magistrates Court on 12th October 1998 to 6 charges of furnishing false information contrary to section 19(1)(b) of Chapter 210 and to 8 charges of procuring the execution of a valuable security contrary to section 22(2) of that same Ordinance.

2. On 12th October the Magistrate adjourned sentence until 26th October 1998 and called for a Community Service Order and Probation report. That report was extremely favourable to the appellant. On 26th October 1998 he sentenced the appellant to 6 months' imprisonment in respect of each of charges 1-14. The sentences in respect of charges 7-14 were ordered to be served concurrently, both as between themselves and with the sentences imposed in respect of charges 1-6. As to charges 1-6, whilst the learned Magistrate imposed a term of 6 months in respect of each charge, he ordered that one month in respect of each of charges 2-6 be served consecutively to the sentence imposed in respect of charge 1 whilst 5 months be served concurrently with the sentence imposed in respect of charge 1.

3. In this manner the appellant was ordered to be imprisoned for a total of 11 months.

4. The grounds of appeal initially advanced on behalf of the appellant are in reality threefold. Firstly; that the total term of 11 months' imprisonment was wrong in principle and/or manifestly excessive; secondly that the learned magistrate erred in that he imposed a deterrent sentence upon a first offender and, thirdly, that he failed to give due and proper consideration to whether or not the circumstances of the appellant and of the offences were sufficiently exceptional to warrant the sentences of imprisonment being suspended. Mr. Lee, Leading Counsel for the appellant confines himself this morning principally to that 3rd ground.

5. In his skeleton argument before me Mr. To for the prosecution addresses and argues the first and the second of those grounds of appeal - but not the third: he has endeavoured to deal with that ground this morning.

6. The facts of the offences, as recited in the magistrate's admirably detailed and comprehensive reasons for sentence, show that in 1996 and 1997 the appellant was employed as the service co-ordinator of the Sheng Kung Hui Kei Oi Social Service Centre - which Centre is a non-governmental social service agency which organizes, and runs, adult education courses under the subvention of the Adult Education Programme provided by the Education Department. It was a part of the appellant's job to submit applications for subventions for the approval of the Education Department in respect of such education courses. Eight of the courses in respect of which subventions were sought and paid, were found not to have taken place. The total sum involved in those subventions was $50,360.00. Charges 1-6 relate to the appellant's dishonest submissions of subvented programme summaries knowing that they were misleading false or deceptive, and charges 7-14 relate to the issuing of the eight cheques paid in response to those submissions. Charges 7-14 were therefore, as recognised by the learned Magistrate in his reasons for sentence, as being (as he put it) "part and parcel of the offences under charges 1-6".

7. I just pause here to say - because it is of considerable importance to this appeal - that it was emphasised by Leading Counsel for the appellant at the Court below that his pleas of guilty to the offences charged in charges 1-6 were upon the footing, not that he had furnished misleading false or deceptive information with a view to gain for himself, but that he had done so with intent to cause loss to another. In other words that the appellant had not pocketed the subvention money for his own use, but that he had used it for the benefit of the Social Service Centre for work programmes for which funds were not otherwise readily available.

8. Paragraph 5 of the Probation Report expands somewhat upon that. In mitigation before the learned Magistrate Leading Counsel for the appellant (inter alia) stressed that, as a result of what he had done, the appellant who is aged 35, married and without prior criminal conviction had been dismissed from his job and was thus unemployed.

9. During the course of mitigation no fewer than ten affirmations or affidavits from members of the community were presented to the Magistrate by consent of the prosecution, each of which spoke in glowing terms of the appellant; his good character; his unselfishness; his devotion to his work and of his motives. One of those documents refers to the appellant as being an enthusiastic social worker, particularly committed to the promotion of the welfare of, and the service development for, the elderly. That document goes on to say - and I quote:

"While the government has been very tardy in development of social services for the elderly Mr. Wong has been trying very hard to find resources, both locally and overseas, to fill the service gaps in the existing system and to meet the needs of the poor and elderly."

10. Among the other documents or character statements before the learned Magistrate, was a compelling one from the appellant's wife which, together with all of the other documents, I have read carefully. Among other things she says in that document that the appellant received no personal benefit whatsoever from what he had done but that his efforts to help others governed his life, and had exhausted him.

11. Also handed to the learned Magistrate during the course of mitigation were some 50 sheets of documentary evidence purporting to show - and again this was not objected to by the prosecution - expenditure met by the appellant out of his own pocket on behalf of the Service Centre. Putting it another way, if that evidence was accepted, then not only had the appellant not enriched himself at the expense of the Education Department but he was in the habit of personally subventing, at least to a small degree, the work of the Centre.

12. All of this, together with the fact that the appellant paid to the Education Department the sum of $50,360.00 to make good its loss as represented by the eight charges 7-14, was most powerful mitigation and the learned Magistrate addressed it in detail in his reasons for sentence.

13. He said - and I quote:

"According to the affidavits, the appellant's hard work and service to our community and his devotion especially to the under privileged cannot be questioned."

"He has, because of these offences, lost his job which he must have treasured ... he is presently unemployed ... his future in continuing to work as a social worker will surely be affected."

"It gives the Court no pleasure but sadness in sentencing a defendant with such previous positive good character and outstanding devotion to the needy people of our community."

The magistrate went on to say:

"I have considered everything before me including the appellant's background, massively favourable comments from his character witnesses, his pleas of guilty ... and the claim that there was no personal benefit from the commission of these offences which was not challenged by the prosecution."

14. The learned Magistrate then concluded that as the offences were of a very serious nature; that as they involved a serious breach of trust; and that as the appellant's motives were in effect immaterial, he could not agree with the recommendation before him that the appellant should atone for his wrong doing by performing a period of community service and that such wrong doing could only be met by an immediate prison sentence.

15. He said - and again I quote:

"It is the Court's duty to maintain public confidence in the sentencing system. A sentence with deterrent effect has to be imposed for offences of this nature. As a matter of general principle, a breach of trust attracts to itself a custodial sentence."

16. I just pause here to say that, on the arguments before me this morning put by Mr. Lee, it is at least questionable whether in fact this was, in truth, a breach of trust situation as such term it is commonly understood. In the final paragraph of his reasons for sentence the Magistrate added this - and again I quote:

"Lastly the Court has considered suspending the sentence ... but found it inappropriate because the sentence must have a deterrent effect ... The Court is of the view that an immediate custodial sentence for a case of this nature is necessary and proper."

17. In this context I do not think that it is entirely without significance that when the Magistrate delivered himself of extempore reasons for the sentence following mitigation, he made no mention of any consideration of suspending the sentence but, when invited by leading counsel for the appellant to consider it, he said that he had done so but thought such a course was inappropriate.

18. I would just add here that it appears to me from what the Magistrate said in his reasons for sentence that he believed that, once he had determined that a deterrent sentence was called for, such meant not only a prison sentence but an immediate one. In my respectful view, in that, he fell into error.

19. Having considered the papers in this case with great care I do not agree with the appellant's first ground of appeal that the sentence of 11 months imposed was either wrong in principle or manifestly excessive. I respectfully agree with the learned Magistrate that a sentence of 11 months' imprisonment was entirely appropriate for these offences and that, if such was a deterrent sentence (as it was clearly intended to be) then the Magistrate was not precluded from imposing it, simply by virtue of the fact that the appellant had not previously offended. I do not however, and with the greatest respect, agree that the appellant's motives are irrelevant to sentence. It seems to me that they are highly relevant and crucial to this appeal.

20. Nor can I agree that, in the particular circumstances of this case, it was inappropriate to suspend the sentence. Whilst sentences of imprisonment will only be suspended in exceptional circumstances, a precise definition of which cannot be laid down, there are quite clearly to my mind exceptional circumstances in this case which wholly justify the suspension of those sentences. A prison sentence which is suspended is nonetheless a prison sentence, and it is that sentence which meets the seriousness of the offences and the need for deterrence. Whether the sentence of imprisonment can properly be suspended is another matter entirely.

21. Section 19 and section 22 offences are not "excepted offences" within the meaning of Chapter 221and, that being so, a tribunal considering sentence for such offences is obliged, once it has concluded that a sentence of imprisonment is appropriate for such offences, to go on from there to consider if there are exceptional circumstances justifying suspending such sentence.

22. As is stated in "Sentencing in Hong Kong" by Cross and Cheung (2nd Edition) at page 246:

"... a court errs if it looks more for reasons for not suspending the prison term than for reasons upon which it could rely to suspend."

and - (further down that same page)

"Although the process to which the court must adhere before it comes to consider a suspended sentence is clear, the factors which may ultimately tip the scales in favour of suspension are not. However if the humanitarian considerations are sufficiently strong then suspension may be justified."

23. In my view, if ever there was a case in which the humanitarian considerations were sufficiently strong, it is this one. This appellant has already paid a heavy price for what he has done, without having to serve an immediate term of imprisonment. Given all that I have read in relation to this case I would be astonished if he were ever to offend again. I might just add that, lest there be in any doubt about it, if any other person is minded to do what this appellant has done then he can expect to be sent to prison, and only if he can show exceptional circumstances might that sentence be suspended.

24. Accordingly I allow the appeal to the extent that the sentences imposed by the learned magistrate be suspended as from today for a period of two years.