HKSAR v. WONG KAM SANG

HCMA1156/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1156 OF 1999

(ON APPEAL FROM NKCC 6037/1999)

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J U D G M E N T

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1. The appellant was convicted of 13 charges of procuring entry in the record of a bank by deception. The record of the bank referred to in each of the 13 charges was his own bank account. The entries referred to in the charges were entries of payment made by the Social Welfare Department under the Comprehensive Social Security Assistance Scheme ("CSSA") into his bank account of various sums. The deception was that he had made various declarations for the purpose of obtaining CSSA, falsely claiming to be unemployed whereas he was most of the time in paid employment. The offences started in August 1996 and ended in July 1997. The total amount overpaid under the 13 charges was $61,158.19.

2. The appellant claims that the sentences imposed by the Magistrate, i.e. 10 months of imprisonment for each of the charges, to run concurrently, are too severe. He now appeals to ask me to reduce the sentences.

3. In passing sentence, the Magistrate referred to the case of HKSAR v. Cho Kwun-wah [1998] 2 HKC 738 where on an appeal from a magistrate's decision, V. Bokhary J was of the opinion that for a guilty plea to 11 charges of obtaining property by deception, a sentence of 12 months' imprisonment was appropriate. She imposed that sentence for each of the 11 charges faced by the appellant and ordered the sentences to run concurrently.

4. That case involved the dishonest acquisition of Social Security Allowance totaling $11,706. Comparing that case with the present one, it can only be said that the sentence of 10 months' imprisonment imposed by the Magistrate was lenient on the appellant. I must say that I share the view of the Magistrate when he considered the seriousness of this kind of offence in the following terms :-

"In my view offending of this sort and on this scale against a tax payer-funded initiative to assist those in genuine need calls for firm sentencing with one of the objectives being deterrence, both for the offender and generally. The sustainability of schemes such as C.S.S.A. is dependant, at least in part, on honesty in applications for assistance. That the drain fraud presents to their funding hampers their ability to respond to genuine need in the community is notorious in all countries fortunate enough to have such a scheme."

The Magistrate adopted a starting point of 15 months' imprisonment for each of the charges and reduced the sentence to 10 months to take into account the timely guilty pleas entered by the appellant. I do not see anything wrong with that approach or with the appropriateness of the sentences.

5. The appellant mentions to me that his wife came to Hong Kong shortly before from the Mainland as a one-way permit holder and she is now living together with their two daughters, aged respectively 5 and 10 years. Both girls are studying and the mother is working in a Chinese restaurant. The appellant asks me to reduce his sentences so that he can join his family as soon as possible. Not that I do not have sympathy with the appellant's family, but that these are serious offences and the appellant must be punished for them. I do not feel that the sentences passed by the Magistrate are in anyway excessive.

6. In the circumstances, the appeal must be dismissed.