HKSAR v. LAI KA YIN

HCMA 294/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 294 OF 2016

(ON APPEAL FROM TWCC NO 2481 OF 2015)

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J U D G M E N T

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INTRODUCTION

1.  The appellant pleaded not guilty to, and was convicted after trial of one charge of fraud, contrary to section 16A (1)(a) of the Theft Ordinance, Cap 210, Laws of Hong Kong.  She was sentenced to 4 months’ imprisonment. 

2.  The appellant appeals both her conviction and sentence.

THE ADMITTED FACTS

3.  At the trial, the Admitted Facts (P1) sets out the facts which are not in dispute:-

“1. The identity of Defendant is not in dispute. Defendant is a physically disabled person and has been a recipient under the CSSA since 1998. Defendant’s application form for CSSA dated 12 January 1998 is produced as exhibit P2, and the certified translation is exhibit P2a.

2. In the CSSA review forms dated 1 March 2011, 15^th August 2012, and 23^rd July 2013 (exhibits P3, P4 and P5 respectively), Defendant declared that she had not taken part in any insurance schemes and only had one bank account, namely Standard Chartered Bank account no. xxx-xxx-xxxx-xxxx (number withheld).

3. On 13^th October 2005, Defendant opened a current account with Standard Chartered Bank no. XXX-X-XXXXXX-X (‘Current Account’)(number withheld). Defendant has never disclosed the existence of the current account to the SWD. Upon checking against the bank records of the Current Account, it was revealed that 3 cheques were deposited into the Current Account and these cheques were related to insurance claims made by the Defendant. The details of the 3 cheques are as follows:-

a. A cheque no. 013080 issued by Motor Insurers’ Bureau of Hong Kong for the sum of HK$63,481.00 was deposited into the Current Account on 4^th March 2010. The said cheque is exhibit P6 (‘The first deposit’).

b. A cheque no. 013081 issued by Motor Insurers’ Bureau of Hong Kong for the sum of HK$60,000 was deposited into the Current Account on 4^th March 2010. The said cheque is exhibit P7 (‘The second deposit’).

c. A cheque no. 277386 issued by Chartis Insurance Hong Kong Limited for the sum of HK$33,455.44 was deposited into the Current Account on 12^th August 2010. The said cheque is exhibit P8 (‘The third deposit’).

4. Pursuant to section 20 of the Evidence Ordinance, Cap. 8 of the Laws of Hong Kong, the banker’s affirmation of Yip Yuet Mei (of Standard Chartered Bank) is now produced as exhibit P9. The certified translation of P9 is P9a.

5. AIG Insurance Hong Kong Limited (formerly Chartis Insurance Hong Kong Limited) provided the police the claim documents/records relating to the sum of HK$33,455.44. The said claim documents/records are now exhibited as exhibit P10.

6. From 1^st March 2010 to 28^th February 2014 (both dates inclusive), the Defendant received HK$94,842 in total by way of CSSA.

7. Defendant had from October 2014 to 7^th September 2015 repaid HK$5,045.13 to the Social Welfare Department.

8. Defendant has a clear criminal record in Hong Kong.”

PROSECUTION CASE

4.  The prosecution case is that the appellant, a CSSA recipient on ground of physically disability since 1998, failed to disclose a bank account of her into which the first two cheque deposits were made.  The charge was re-amended after the evidence of PW3, who testified that the third cheque deposit did not give rise to any overpayment of that month.  As a result, the prosecution re-amended the charge and excluded the third cheque deposit.

5.  In the CSSA review forms dated 1 March 2011, 15 August 2012 and 23 July 2013, the appellant declared that she had not taken part in any insurance schemes and only had one bank account, namely the Standard Chartered Bank account referred to in [2] of the Admitted Facts.  It was later discovered that the appellant had failed to disclose the Current Account referred to in [3] of the Admitted Facts.  The Current Account was opened in 2005.

6.  Three cheques dated 4 March 2010, 4 March 2010 and 12 August 2010 with respective amounts of HK$63,481, HK$60,000 and HK$33,455.44 were deposited into the Current Account.  They were insurance claims.

7.  As a result of the non-disclosure, an overpayment of HK$30,845.13 was paid to the appellant.  The appellant has already repaid HK$5,045.13 to the Social Welfare Department (“SWD”) as at September 2015.

DEFENCE CASE

8.  The appellant did not give evidence.  From what defence counsel put to the prosecution witnesses and the closing submissions, it was argued that:

(1)   The non-disclosure might be an oversight or mistake on the part of the appellant.

(2)   There was no evidence to prove that the appellant intended to defraud or she was dishonest.

(3)   It was probable that the appellant did not know that she had to disclose the sums in question because they were compensation, not asset.  Also the appellant might not have thought that the “cash value of insurance policy” in the review forms included motor insurance and medical insurance.  Due to the lapse of time, it might be probable that the appellant had an oversight or was negligent and as a result of which she did not disclose her Current Account.  There was insufficient evidence to prove beyond reasonable doubt that the appellant intended to defraud or she was dishonest.

(4)   The re-amended charge was duplicitous.

THE MAGISTRATE’S REASONS TO CONVICT

9.  The learned magistrate rejected the submissions that the re-amended charge is bad for duplicity.  The ruling made by the learned magistrate is not a subject of any complaint on appeal.

10.  On the issue whether the appellant had the intent to defraud, the learned magistrate took into account all the three cheques were issued some time before the review interviews, but were only deposited into the appellant’s undisclosed Current Account not long after the interviews.   The learned magistrate found that no matter whether the appellant received the three cheques before or after the interview in question, the appellant did attend the interviews, in which she was reminded that she had to disclose her asset to the staff of SWD. The appellant did not disclose the three cheques at all.  The first two cheque deposits had raised her total income substantially and affected the appellant’s eligibility to CSSA.

11.  On the issue whether the appellant would consider the sums were compensation, not asset.  The learned magistrate said in [53] of the Statement of Findings that:

“Defendant did not testify, therefore, there was no evidence before the court what she thought and believe at the material time. There was no evidence before the court what her understanding of ‘cash value of insurance policy’ was. There was also no evidence whether she considered these two cheque deposits were compensation only, not asset.”

12.  The learned magistrate found that it was not for the appellant, as a recipient of CSSA, to decide what she considered as an asset or compensation, she was obliged to disclose her financial situation when there was income which might affect her eligibility to obtain CSSA.  The learned magistrate the first two cheque deposits that amounted to HK$123,481.08 concerned money, and money was an asset.

13.  On the issue whether the first two cheque deposits were compensation, the learned magistrate found that there was no evidence that the two cheques issued to the appellant by “Motor Insurers’ Bureau of Hong Kong” were for compensation.

14.  The learned magistrate found that the appellant had been using the Current Account continuously and actively.  There were withdrawals following the two cheque deposits.  Defence counsel submitted that the failure to disclose the Current Account might be an oversight or omission on the part of the appellant, the learned magistrate did not believe the appellant would be so forgetful that she forgot to disclose her Current Account to the SWD when the account was in active use.  In any event, the appellant did not testify and there was no evidence as to why she did not disclose.

15.  The learned magistrate noted that the cheques in question were deposited into the undisclosed Current Account instead of the disclosed account.  The learned magistrate said at [74] of the Statement of Findings:

“I considered by concealing the Current Account and the 2 deposits, I could also draw an only and irresistible inference that Defendant did not want SWD to know about these 2 deposits because she knew that would affect her entitlement to CSSA, I considered that she had intent to defraud.”

16.  The learned magistrate found that the appellant did falsely represent to the SWD in her Review Forms.  In concealing the Current Account and the two cheque deposits, the appellant was acting dishonestly.

17.  The learned magistrate found that the appellant by deceit, and with intent to defraud, induced the SWD to grant her or continue to grant CSSA to her.  She found all the elements of the offence proved beyond reasonable doubt and she convicted the appellant as charged.

THE MAGISTRATE’S REASONS FOR SENTENCE

18.  The learned magistrate noted that the appellant had a clear record.  She is 42 years old and is a full time house wife with two children, aged 8 and 18.  The appellant suffers from Congenital Absence of left arm since birth. She and her family have been on CSSA since 1998.  The appellant has been repaying $430 to the SWD each month since 30 September 2014.  The appellant’s husband has ceased to work after a traffic accident in 1993.

19.  The learned magistrate called for a Community Service Report before sentence.  The Probation Officer opined that the appellant had shallow remorse and had little reflection of her wrongdoings.  The Probation Officer took the view that the physical disability of the appellant would hinder the performance of CSO in open setting.  CSO was therefore not recommended.

20.  The learned magistrate said at [84] and [85] of the Reasons for Sentence:

“84. Having considered all the circumstances of the case, the mitigation, the background of Defendant, the CSO report and the case HKSAR v Leung Wai Kei, CAAR 6/2006, and the overpayment is $30.845.13. I considered that custodial sentence was appropriate whilst I did not find any factor that warranted a suspension.

85. Therefore, I took 5 months’ imprisonment as a starting point.  In view of Defendant’s physical disability, as an act of mercy, I deducted one month.  I sentenced Defendant to 4 months’ imprisonment.”

DISCUSSION

Appeal Against Conviction

21.  Ground 1 complains that the learned magistrate in dealing with the question of the appellant’s belief that the sums of money in question were compensation and not an asset, failed entirely to make a finding that compensation was an asset and in so failing was not able to find that the appellant had acted dishonestly. 

22.  In my judgment, it does not matter whether the sums of money were compensation, when deposited into the Current Account of the appellant and received by her, became asset of the appellant.  The learned magistrate at [56] of the Statement of Findings (p.26 of the Appeal Bundle), when she referred to the first two cheque deposits, correctly stated that:

“…these two sums were money, and money was an asset.”

23.  I agree with the respondent’s submissions that the learned magistrate correctly stated at [53] of the Statement of Findings that there was no evidence that the appellant considered the two sums of money as compensation only and not asset.  It was a bare assertion put to a prosecution witness. The evidence that the two cheques were deposited into the Current Account and withdrawn soon after supports the finding that the appellant treated the money as her asset.  The appellant should have declared the existence of the Current Account and the first two cheque deposits.

24.  There is nothing in Ground 1.

25.  Ground 2 complains that the learned magistrate reversed the burden when dealing with the issue of whether or not the two cheque deposits must be compensation.

26.  The learned magistrate said at [58] of the Statement of Findings:

“Further, P6 and P7 only revealed that $63,481.08 and $60,000 dated 18 January 2010 were issued to the Defendant by a company named ‘Motor Insurance Bureau of Hong Kong’. There was no insurance to confirm that the two sums must be compensation. I considered that the two sums depicted on the 2 cheques did not themselves prove that they must be compensation.”

27.  The complaint against the appellant is that she failed to declare the existence of the Current Account and the first two cheque deposits.  It does not matter whether the first two cheque deposits were compensation or not. The important issue is whether the appellant should declare them in the reviews. In my judgment, the learned magistrate did not reverse the burden of proof at [58], she just stated the effect of the Admitted Facts that the two cheques were issued by Motor Insurers’ Bureau of Hong Kong does not support a finding that the two cheque deposits must be compensation.  As said, once the cheques were deposited into the Current Account of the appellant, they became an asset of the appellant and she should have disclosed them in the reviews.

28.  Ground 3 complains that the learned magistrate erred to state that the appellant was the only bank account holder of the Current Account.

29.  Paragraph 3 of the Admitted Facts read:

“On 13^th October 2005, Defendant opened a current account with Standard Chartered Bank no. XXX-X-XXXXXX-X (‘Current Account’)(number withheld). …”

I agree with the respondent’s submissions that from the account records of the Current Account (P9, the banker’s affirmation, p.73-110 of the Appeal Bundle), one can see clearly that the Current Account was in the name of the appellant.

30.  Ground 3 fails.

31.  Ground 4 complains that the learned magistrate wrongly disregarded the fact that the appellant could have simply deposited the cheques in question into her account at different times and would not have committed any offence which was a point which significantly impacted on the question of dishonestly.

32.  In my judgment, there is no evidence that the appellant knew she could have deposited the two cheques in question in the way suggested by Mr McGuinnietty without committing any offence.  Mr McGuinnietty’s submission presupposes the appellant could wait for the right time to deposit the cheques in question but the evidence that the two cheques were deposited into the Current Account and withdrawn soon after runs against the submissions that the appellant did not need the money and could wait for the right time to deposit the two cheques.

33.  Ground 4 fails.

34.  Ground 5 complains that the learned magistrate was aware that the re-amended charge concerned but two cheques, however the learned magistrate kept referring in her Statement of Findings to the three cheques as if the third cheque further implicated the appellant to her prejudice.

35.  I agree with the respondent’s submissions that the third cheque was used by the defence at trial to elicit evidence from PW3 that the third cheque deposit did not affect the appellant’s CSSA and so somehow the appellant could have deposited the first two cheques in like manner under the belief that they would not affect her CSSA payments.  The learned magistrate was entitled to refer to the third cheque in her analysis.  In fact, the existence of the third cheque and the deposit of it were facts admitted by the defence at trial.  The learned magistrate, in [3] of the Statement of Findings, made it clear that:

“… The third deposit did not exceed the maximum income allowance of that month, therefore, the re-amended charge only includes the first and second deposits…”

The learned magistrate made it abundantly clear at [25] of the Statement of Findings that:

“…, but the third cheque deposit did not affect her eligibility for that month, …”

36.  The evidence of PW3, the Social Welfare Officer tasked to calculate the overpayment, testified that the first two cheque deposits affected the appellant’s eligibility to obtain CSSA in the months of March, April and May 2010.  The learned magistrate in her reasoning only focused on the first two cheque deposits and the effect of them on the appellant’s eligibility to CSSA.  In my judgment, it cannot be said the references to the third cheque and the deposit of it could implicate the appellant to her prejudice in the way Mr McGuinnietty suggests or at all.  

37.  Ground 5 fails.

38.  Ground 6 complains that the learned magistrate stated at [69] of the Statement of Findings that the appellant gave two versions in relation to the sums of money to PW6, she went on to state that the court did not have sufficient evidence to ascertain which version was true, that being the case, it was not possible for an adverse inference finding be made against the appellant in respect of that crucial matter.

39.  The learned magistrate summarized the two versions given by the appellant at [28] to [32] of the Statement of Findings:

“28. On 3 April 2014, PW6 interviewed Defendant and asked her about the two sums - $123,491.08 (the combined amount of the first and the second deposits) and $33,455, in her undisclosed Current Account. PW6 showed Defendant her bank statement.

29. Defendant replied that she had settled certain sums for her mother, and so, her mother issued the cheques to repay her. Defendant did not tell PW6 that the first two cheques were actually issued by the Motor Insurers’ Bureau, or they were insurance related.

30. Around 2 May 2014, PW6 telephoned Defendant. Defendant told her that she had a traffic accident in 2006. She was the driver of the vehicle and the vehicle belonged to Mr. Tse, her friend. The accident cause damaged to the vehicle, therefore, she gave the ‘compensation’ she received to Mr. Tse.

31. PW6 asked for Mr. Tse’s information, but Defendant did not give her any further information or contact number of Mr. Tse. Defendant also did not provide any proof that she had repaid Mr. Tse. Defendant only told her that the ‘insurance’ had given her ‘compensation’.

32. PW6 then asked her why she first told her it was a repayment from her mother.  Defendant replied that she could not remember why.”

40.  I agree with the respondent’s submissions that as the admitted facts show, the appellant’s mother did not issue the first and the second cheque to the appellant, to that extent the appellant’s first version must not be true. As for the second version, there was a complete lack of details, no information or contact number of Mr Tse was provided and there was nothing to show that the appellant had paid Mr Tse.  The learned magistrate, in assessing these out-of-court explanations given by the appellant, was entitled to take into account the fact that the appellant had provided PW6 with two different versions and the lack of details in them.

41.  I agree with the respondent’s submissions that the issue in this case is whether the appellant intentionally did not declare the existence of the Current Account and the first two cheque deposits.

42.  Ground 6 fails.

43.  Ground 7 complains that the learned magistrate erred to draw the adverse against the appellant at [73] that the appellant deliberately wanted to conceal the two cheque deposits in the face of a fair and alternative inference that she simply did not know, understand or appreciate that the said cheques counted as asset and had to be disclosed.  Giver the aforesaid error at [73], the inference at [74] that the appellant did not want the SWD to know about the first two cheque deposits because she knew that would affect her entitlement to CSSA and hence she had the intent to defraud could not be drawn against the appellant.

44.  Mr Daryanani for the respondent submits that the learned magistrate clearly explained the conclusion at [74] of the Statement of Findings.

45.  The learned magistrate made the observation at [61] of the Statement of Findings that the first two cheques were deposited into the undisclosed Current Account just one month after the review interview.  The bank records also revealed that there were withdrawals following the cheque deposits.  The learned magistrate took into account the fact that the appellant was the only bank account holder, drew the irresistible inference that it was the appellant who withdrew the sums from the Current Account.  In my judgment, the aforesaid evidence outlined by the learned magistrate clearly supports her findings that the appellant treated the sums deposited into the Current Account as her asset.  The learned magistrate was quite entitled to make the findings she made and I have no reason to disturb the findings of the learned magistrate.

46.  There was no evidence before the magistrate that the appellant did not know, understand or appreciate that the said cheques counted as assets and had to be disclosed.  In fact, the learned magistrate, at [62] and [65] of the Statement of Findings, dismissed the possibility that the appellant failed to disclose the Current Account to the SWD due to forgetfulness, oversight or omission.

47.  I agree with the learned magistrate’s reasoning at [74] of the Statement of Findings that by concealing the Current Account and the two cheque deposits, the only and irresistible inference that could be drawn is that the appellant did not want the SWD to know about the first two cheque deposits as she knew the first two cheque deposits would affect her entitlement to CSSA.  The appellant had had the intent to defraud. 

48.  Ground 7 fails.

49.  Ground 8 complains that the learned magistrate failed to consider that the appellant might not realize that the cheques in question were assets which needed disclosing and on a fair and reasonable consideration the second limb of Ghosh would not have been satisfied.

50.  It is clear that before the learned the learned magistrate found at [77] of the Statement of Findings that the appellant was acting dishonestly, she had considered with great care the following issues and their implications/bearings on the issue of the application of the Ghosh test:

(1)   That the cheques were issued before the interviews but deposited not long after the interviews. ([47] to [51] of the Statement of Findings)

(2)   The suggestion that the appellant might believe that the sums were compensation, not asset. ([52] to [57] of the Statement of Findings)

(3)   Any evidence to prove that the two cheque deposits must be compensation? ([58] of the Statement of Findings)

(4)   That the appellant failed to disclose the Current Account which had been continuously and actively used by her. ([59] to [66] of the Statement of Findings)

(5)   The effect of the opening of the Current Account. ([67] to [68] of the Statement of Findings)

(6)   The two different versions given by the appellant to PW6 in the inquiries. ([69] of the Statement of Findings)

(7)   That the cheques were deposited into the undisclosed Current Account, not the disclosed account.

51.  A fair reading of the Statement of Findings does not support the complaint that the learned magistrate failed to consider that the appellant might not have realized that the cheques in question were assets which needed disclosing.  In my judgment, the learned magistrate had considered with great care the issue whether the appellant knew at the time, she was acting dishonestly.

52.  Ground 8 fails.

53.  Ground 9 complains that the learned magistrate convicted the appellant against the weight of the evidence and in the face of many lurking doubts.

54.  I agree with Mr Daryanani that there is overwhelming evidence to convict the appellant.

55.  Ground 9 fails.

Rehearing

56.  Grounds 1 to 9 fail for the reasons given.  It remains for me to perform my statutory to rehear the case.  On the evidence adduced, I am satisfied that the guilt of the appellant is proven beyond reasonable doubt.

57.  I dismiss the appellant’s appeal against conviction.

Appeal Against Sentence

58.  Mr McGuinnietty puts forward three grounds of appeal against the sentence of 4 months’ imprisonment:

“1. The Learned Trial Magistrate unfairly ignored the fact that this offence was one which having no strict tariff allowed all options open and wrongly refused to accept that this appellant who was a woman with a clear record, a housewife with a physical disability who had committed an offence out of naivety than criminality and who was steadily repaying the over payment in full was deserving of the leniency which was sought on her behalf as to a suspended sentence.

2. The learned Trial Magistrate seemed to find that because the appellant had not repaid the overpayment in full that she was not deserving of any sentence other than an immediate sentence of custody. The fact that a suspended sentence is a custodial sentence and would have been entirely fair and appropriate was simply overlooked.

3. It is respectfully submitted that in this case on its own unique facts and bearing in mind the disability of the defendant and her personal circumstances that a sentence of a suspended custody would have been in this case a fair, reasonable and appropriate sentence.”

59.  The respondent submits that the appellant should serve the remainder of her sentence.  The offence in question was a deliberate and continuous deception over a period of 4 years, i.e. 1 March 2010 to 28 February 2014.  Had the fraud not been discovered, the appellant would not have revealed herself.   The starting point of 5 months’ imprisonment taken by the learned magistrate is appropriate as the appropriate starting point for an amount less than HK$50,000 is less than 9 months’ imprisonment according to Secretary for Justice v Leung Wai Kei, [2007] HKCLRT 206.  The 1 month reduction for the appellant’s physical disability is also appropriate. 

Discussion

60.  The learned magistrate, before sentence, had considered Secretary for Justice v Leung Wai Kei, the leading authority on sentencing of offences involving the obtaining of public assistance funds by deception.  At [27] of the judgment, the Court of Appeal said:

“27. We agree that the CSSA Scheme is intended to help those in genuine need of assistance. Our society does not tolerate any act of defrauding funds by dishonest means. However, we do not endorse the view that an immediate custodial sentence should be imposed on each and every person guilty of defrauding public funds. Each case presents its own facts and each defendant has his own circumstances, and it would go against sentencing principles to lay down a hard-and-fast rule of adopting immediate imprisonment as a starting point. The following factors should be considered in determining whether a severe sentence is to be imposed:

(1) whether the defendant pleaded guilty;

(2) the amount involved and the length of time over which the offence was committed. It should be noted that, even where a huge total amount is involved, this may be an accumulation of small amounts received by the applicant per week/per month;

(3) the circumstances leading to the offence. There is an obvious difference between a legitimate claim which became false due to a change of circumstances and a claim which was false from its inception;

(4) the purpose for which the money has been used; using the money for providing household necessities will more readily attract the court’s sympathy than spending the money on luxuries;

(5) the defendant’s character and previous record;

(6) circumstances specific to the defendant, such as illness, disability, family difficulties, etc; and

(7) whether the defendant has voluntarily repaid, in whole or in part, the amount that has been overpaid to him.”

61.  In the present case, it should be noted that:

(1)   The appellant pleaded not guilty to the charge and was convicted after trial.

(2)   The amount involved was $30,845.13 and the period was between 1 March 2010 and 28 February 2014.  Though the offence covered a period of 4 years, the overpayment of $30,845.13 mainly took place in the following two periods:

(i) From 1 March 2010 to 31 March 2010 - $10,384.00

(ii) From 1 April 2010 to 28 February 2011 - $20,461.40

     (P12A, p.119 of the Appeal Bundle)

The respondent submits that the offence was a deliberate and continuous deception over the charge period.  In my judgment, the offence was certainly a deliberate one.  It was continuous only in the sense that the appellant failed to disclose the existence of the Current Account throughout the offence period and the cheque deposits at the relevant review interviews and all the subsequent review interviews.  The non-disclosure by the appellant affected mainly her eligibility from 1 March 2010 to the end of February 2011, not the entire offence period.

(3)   Mr Daryanani rightly pointed out that the appellant’s claim for CSSA was a legitimate one to start with, it only became false due to a change in circumstances.

(4)   It is not clear the purpose for which the overpaid money had been used.

(5)   The appellant had a hitherto clear record and the learned magistrate was aware of it.

(6)   The learned magistrate was aware of the appellant’s physical disability.

(7)   The appellant had repaid the SWD $8,055.13 by 13 April 2016.

62.  In Leung Wai Kei, the Court of Appeal said at [46] of the judgment:

“… However, we do not agree that an immediate imprisonment term must be taken as a starting point in order to achieve deterrence. On the contrary, the sentencing principles laid down in R v Stewart (Livingston) are to be preferred:

(1) The Court should first consider whether a custodial sentence is necessary;

(2) If a custodial sentence is appropriate, the court may consider imposing a community service order in lieu of imprisonment or suspending the sentence;

(3)   In cases involving some intentional and persistent fraud, an immediate custodial sentence is justified.”

63.  A fair reading of the learned magistrate’s Reasons for Sentence shows that she had clearly taken into consideration the clear record of the appellant, her background and the repayment arrangement that the appellant had reached with the SWD.  The learned magistrate was fully aware of the circumstance under which the appellant committed the offence. 

64.  I do not agree with Mr McGuinnietty that the learned magistrate “seemed to find that because the appellant had not repaid the overpayment in full that she was not deserving of any sentence other than an immediate sentence of custody”.  The learned magistrate had considered Community Service Order as a sentencing option, regrettably the appellant had shown no remorse or just shallow remorse in her interview with the Probation Officer.  Given the lack of remorse, the learned magistrate was right not to place the appellant under a Community Service Order.

65.  The appellant insisted to repay by installments in the beginning. Defence counsel, in mitigation, asked for a suspended sentence and offer to repay the sum in full within 24 hours.  The learned magistrate took into account the fact that the appellant’s family only received $9,843 each month, decided not to order the appellant to repay in one go.  In my judgment, it cannot be reasonably argued that the learned magistrate sentenced the appellant to an immediate term of imprisonment because she had not repaid the overpayment in full.

66.  In my judgment, taken into consideration the seven factors and the three sentencing principles discussed in the preceding paragraphs, bearing in mind in particular the hitherto clear record, the physical disability and the family difficulties of the appellant, the interest of justice is best served by suspending the sentence of 4 months’ imprisonment for a period of 2 years.

67.  I allow the appellant’s appeal against sentence.  The sentence of 4 months’ imprisonment is varied to the extent that it is suspended for a period of 2 years.