R. v. CHU MAY LING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1168 OF 1996

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J U D G M E N T

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1. The appellant pleaded guilty to one count of theft of a credit card and 20 counts of obtaining property by deception using that card. The appellant admitted she found the credit card on the stairs of her premises and she obtained the code from the Bank to use it. Subsequently she used it to purchase various items of clothings and ornaments on 20 occasions. Afterwards, she discarded the card. The total amount involved was $36,001.50.

2. She was sentenced to a total of 11 months imprisonment. The magistrate in his reasons for sentence stated that for the offence of theft, in his view this merited a custodial sentence of six months imprisonment. For the other offences, he considered that each merited a custodial sentence. He said : "They are prevalent offences. They fall within the category of offences which permit a deterrent sentence even for a first offender. This was not a single isolated incident of theft but a consistent campaign of dishonesty and greed."

3. In imposing the sentences, he said :

"I determined, again, that the appropriate sentence was one of six months imprisonment. I ordered that the sentences on charges 2 to 5 (19 June 1996) be served concurrently with one another but that one month be served consecutively to the sentence on charge 1 : that the sentences on charges 6 to 16 (20 June 1996) be served concurrently with one another but that one month be served consecutively to the sentence on charge 1 : that the sentences on charges 17 and 18 (21 June 1996) be served concurrently with one another but that one month be served consecutively to the sentence on charge 1 : that the sentences on charges 19 and 20 (22 June 1996) be served concurrently with one another but that one month be served consecutively to the sentence on charge 1 : and that one month of the sentence on charge 21 be served consecutively to the sentence on charge 1."

4. It should be noted that the magistrate did not say in respect of which of the charges 2 to 20 the sentence of six months imprisonment was imposed. Neither did he say that the sentence was six months on each of the charges 2 - 20. For the purpose of sentencing, the magistrate had divided the charges 2 to 20 into five groups. He said in his reasons for sentence :

"However, each group of incidents should have a portion of the sentences to run consecutively to each of the other groups so as to result in a sentence which would reflect the overall criminality of the appellant's conduct."

And later he said that the sentences on the offences in each group of charges were to be served concurrently with one another except that one month was to be served consecutively to the sentence on charge 1. However, when he made his order, he did not make it clear whether the sentences in each group were to be served concurrently with the sentences in the other groups. It was also not clear if the one month in each group ordered to be served consecutively to the sentence on charge 1 was to be served concurrently with each other or consecutively to one another. In the circumstances, it was not made out clearly in his statement of findings how the total sentence of 11 months was arrived at.

5. In any case, Mrs Panesar who appeared for the appellant submitted that the sentence of 11 months was manifestly excessive. She submitted that the appellant had made full restitution after the offences were discovered. She further submitted that the appellant had a clear record and was 40 years of age at the time of the offence. She was a first offender and the case was not one involving a breach of trust. She referred to R. v. Ho Kau [1978] HKLR 197 where the appellant who was a first offender pleaded guilty to 16 charges of theft. The stolen property was to a value of around $55,400. The magistrate there imposed a sentence of 3 years as a deterrent. On appeal, the sentence was reduced to 18 months. Addison J. in his judgment referred to R. v. Curran (1973) 57 Cr.App.R.945 on the guiding principle that a deterrent sentence ought not to be imposed on a first offender which was this :

"As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offence, and imposed, as this sentence was, for reasons of general deterrence, that is as a warning to others. The length of a first sentence is more reasonably determined by considerations of individual deterrence."

6. Another case cited by Mrs Panesar was R. v. Yip Muk Kan, Mag.Appeal 957/88 where Macdougall J. referring to the Court of Appeal decision R. v. Kwok Lai Ling [1989] 1 HKLR 418 held that restitution actually made voluntarily before criminal proceedings have commenced or while they were in their earliest stages might have some relevance to sentencing as evidence of remorse.

7. Two cases were cited by the magistrate. In AG v. Chan Sik Ming AR 8/96 the Court of Appeal granted an application by the Attorney General for review of sentence. The suspended sentence was set aside and in its place a sentence of two years imprisonment was ordered for the respondent's conviction on his own plea of guilty to handling a stolen goods vehicle. The respondent was caught when he was driving the stolen vehicle to Lok Ma Chau into China. The Court of Appeal found it was wrong for the judge to suspend the sentence for such a serious offence of handling. AG v. Chan Piu Sang and another AR 16/93 was another application by the Attorney General for review of sentence. In that case, the 1st respondent pleaded guilty to 2 charges of possession of forged credit cards and the 2nd respondent pleaded guilty to 2 charges of possession of a forged credit card and attempted obtaining property by deception. The 1st respondent was sentenced to a total of 21 months imprisonment while the 2nd respondent was sentenced to a total of 6 months imprisonment. The Court of Appeal granted the application and set aside the sentences. In their place, a total sentence of 4 years was ordered in the case of the 1st respondent and a total of 2 years in the case of the 2nd respondent. The Court considered that credit card frauds should be dealt with severely by the courts. However, the facts of these two cases were distinguishable from the present one where no forged credit card was involved.

8. Mrs Panesar submitted that the magistrate asked for a background report but did not ask for the purpose of considering the possibility of probation. Although no probation was recommended as a result, she submitted that deterrent sentence was not necessary. She urged me to substitute a suspended sentence.

9. The background report which the magistrate said he had taken into consideration when imposing sentence showed that the appellant was co-operative and remorseful and the offences were committed in order to enable her to support her children's education. Her husband being a night shift taxi driver was in difficulty to raise the family single handedly in the absence of the appellant. The magistrate was also aware that she had made full restitution to the bank and that the owner of the credit card had forgiven the appellant.

10. Custodial sentence was not inappropriate in all the circumstances of the case. However, it would appear that the magistrate had not given sufficient weight to the mitigating circumstances of immediate full restitution, full confession and co-operation and plea of guilty at first instance, all indicating remorse and the offences were committed by a person with an blemished past out of momentary greed blinded by her good intention to provide for the good of her children. The appellant's family circumstances should also be given more weight. Accordingly, given the weight of these mitigating factors the total sentence of 11 months was manifestly excessive.

11. The appeal against sentence is allowed. The sentence is reduced to a total of 7 months varying the sentences of 6 months to one of 7 months on each of the charges 1 to 21 and to run concurrently with one another.