HKSAR V. TAI KAI CHEUNG

CACC 350/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 350 OF 2010

(ON APPEAL FROM DCCC NO. 836 of 2010)

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JUDGMENT

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Hon Wright, J. (giving the reasons for judgment of the Court):

1.  The applicant seeks leave to appeal the sentence imposed upon him, after a plea of guilty, by Deputy Judge Chainrai, of 16 charges of fraud contrary to section 16A of the Theft Ordinance, Cap. 210, and a further single charge of forgery, contrary to s. 71 of the Crimes Ordinance, Cap. 200.

2.  In her sentencing remarks the judge described the nature of the offences in these terms:

27.       The offences here are serious offences involving a breach of trust.... The defendant was employed by PCCW at the material time as an accounts manager. In respect of Charge 1, he deceived a corporate client of PCCW to sign blank documents which he subsequently used to subscribe for additional mobile telephone service plans in the name of that corporate client without its knowledge, for which he received commission as well as misappropriating complementary mobile telephones given by PC CW to corporate clients who subscribed to the plans. He arranged for someone to pose as the proprietor of the corporate client to speak to his supervisor when she wanted to speak to the corporate client because of the large number of mobile phone service plans involved.

28.       In respect of Charges 2 to 16, he fabricated the agreements and supporting documents as well as using false chops of the alleged corporate clients on the application form. Again, he received commission and misappropriated the complementary mobile telephones.

29.       For Charge 17, when the alleged corporate client made enquiries, he forged an agreement for mobile telephone services. All this required a degree of organisation and planning and involved the use of false documents and false company chops and involved some sophistication.

3.  The applicant was sentenced to undergo imprisonment for a period of 18 months on each of the fraud charges, all the sentences to run concurrently, and to 20 months on the forgery charge with 12 months of that sentence being ordered to run consecutively to the other sentences, resulting in an aggregate period of imprisonment of 30 months. The judge allowed a full one third reduction in recognition of the pleas of guilty.

4.  The applicant seeks leave to appeal on three grounds: first, that the judge erred in her calculation of the time lapse between the applicant’s arrest and the date of being charged, the complaint being that the judge characterised the delay as "almost 19 months" whilst counsel calculated it as 20 months and 27 days; second, that the judge erred in "not taking into account" that delay; third the judge erred in the manner in which she applied the totality principle.

5.  The first two grounds may conveniently be taken together. Whether the judge regarded the delay as being one of 19 months when, in fact, it was 20 months, hardly constitutes a ground of appeal: its inclusion as a substantive ground is, at the least, ill-considered. The point is, that there was a delay and that the judge was fully aware of when it began and ended. The judge dealt with it in detail, expressing herself in these terms:

17. The defendant was arrested for these offences on 24 October 2008 and made full admissions upon his arrest under caution. He was only charged for these offences on 21 July 2010, almost 19 months after he was arrested. I am told that police enquiries took a considerable time because there were a number of arrested persons and victim companies and a lot of witnesses involved, requiring extensive enquiries all of which took some time. The schedule of witnesses annexed to the Summary of Facts lists 21 prosecution witnesses. Statements would have to be obtained from all before the full picture of criminality could be ascertained. Although there has been a delay, I am satisfied that it is not excessive delay.

6.  This was a factor which the judge was entitled to consider: it was for her to decide, on the information before her, whether there had been an excessive delay for which she would afford the applicant a reduction in sentence. She found, contrary to the authorities of HKSAR v CHU ON Chai [2007] HKCLRT 463 and Secretary for Justice v Dank and Anor. CAAR7/2007 to which we were referred, that there was a reasonable explanation for the delay. We agree. There is no merit in either of the first two grounds of appeal.

7.  Surprisingly, no complaint is made about the individual sentences imposed by the judge on Charges 1 to 16. The judge had regard to the decision of  HKSAR v CHEUNG Mee Kiu [2006] 4 HKLRD 776 as to the appropriate starting point for sentences for theft related offences where a breach of trust is involved. Of relevance to this appeal is the fact that it indicates that offences involving less than $250,000 should attract a starting point of less than 2 years whilst between $250,000 and $1 million the starting point should be between 1 and 3 years.

8.  The overall loss to the applicant’s employer was some $335,000 comprised of both the value of the misappropriated mobile phones and commission which was not due in fact. Unfortunately, the judge had regard to the aggregate amount of the loss to the employer occasioned by the 16 fraud charges to determine a starting point of  2 years and 3 months imprisonment in respect of each of the individual offences. She then reduced this by one third and imposed a sentence of 18 months imprisonment in respect of each of the fraud charges and ordered that they be served concurrently with one another.

9.  The effect of this was that the judge did not take an appropriate starting point in respect of each individual charge but, rather, sentenced globally. This is an error in principle and may be important in a situation where an accused appeals conviction and is successful on some, but not all, of the offences for which he has been sentenced on a global basis.

10.  The requisite course to be adopted in passing sentences where there are a number of offences on the charge sheet or indictment is initially to determine the appropriate sentence for each offence taking into consideration all the circumstances of the offence, including its background, and of the offender, and thereafter to apply the principle of totality so that the end result is the imposition of a sentence which properly reflects the entire criminality, including the effect of any plea of guilty, the individual circumstances of the offender and the fact that a number of individual offences were involved.

11.  In this matter, none of the amounts involved in the individual offences, which ranged from $407.88 to $7056.00 would have justified, by itself, a starting point of 2 years and 3 months imprisonment but, rather, one of 18 months in our judgment. The starting point of 2 years and 6 months imprisonment in respect of the forgery charge was appropriate: it was a separate and distinct offence and involved forgery of his own employer’s documents and records in order to cover up his previous criminal act. Those starting points then would fall to be reduced to 12 months and 20 months respectively by virtue of the pleas of guilty.

12.  It was appropriate for the judge to have regard to CHEUNG Mee Kiu at the stage of determining totality in order to obtain broad guidance as to an appropriate overall sentence, bearing in mind that that matter involved far fewer offences, which were of a different nature to those for which the judge was sentencing, as well as a breach of trust of a different nature. 

13.  On the facts of the present matter, where there were 16 separate offences committed over an extended period of time; where the applicant had enlisted the assistance of other persons to carry out his scheme; where the commission of the offences required a degree of organisation and planning and involved the use of false documents and false company chops; and where there was no prospect whatsoever of restitution given the applicant's bankruptcy, we regard an overall sentence in respect of the fraud charges of 2 years imprisonment as appropriate.

14.  On the basis of two years imprisonment being appropriate overall for those charges, the judge would have been justified in ordering that 12 months of the sentence on Charge 17 be served consecutively to the other sentences. Thus the appropriate overall sentence, after the pleas of guilty, would have been, in our judgment, 36 months imprisonment.

15.  The sentence imposed was, therefore, below what we regard as the proper sentence which ought to have been imposed in this matter. The agreement by the respondent that the total sentence imposed by the judge was “on the high side” is misplaced. We do not regard the sentence imposed by the judge as being manifestly inadequate and thus to call for our intervention at this stage, although it remains necessary for us, as a matter of principle, to correct the manner in which the sentence of 30 months is comprised.

16.  In the circumstances we grant leave and, treating the hearing as the appeal proper, allow the appeal to the extent that the period of imprisonment on each of Charges 1 to 16 and the order that each of those sentences be served concurrently is set aside and in their stead are imposed sentences of 12 months imprisonment on each of those charges with an order that the sentences on Charges 2 to 16 inclusive are to be served concurrently with one another but 6 months of those sentences is to be served consecutively to the sentence imposed on Charge 1. The sentence and order in respect of Charge 17 remains unchanged.