HKSAR v. SATHAK, ABDUL KADER ANEES RAHMAN

HCMA 47/2021

[2021] HKCFI 1426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 47 OF 2021

(ON APPEAL FROM KCCC 1676/2020)

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BAIL PENDING APPEAL:
REASONS FOR DETERMINATION

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Introduction

1.  Sathak, Abdul Kader Anees Rahman, (hereafter “the Applicant”) appeared before Mr Cheng Lim Chi, sitting as a Permanent Magistrate in the Kowloon City Magistracy on 28 December 2020.  The Applicant was charged with and convicted of 3 counts of theft on a guilty plea and an admission of brief facts.  He was sentenced to a total of 18 months’ imprisonment.  On 11 January 2021, he has instituted an appeal against sentence under Part VII of the Magistrates Ordinance, Cap 227.  The Applicant has applied for bail pending appeal pursuant to section 122(2) of the said Ordinance.  At the date of hearing, no date for the hearing of his appeal has been set.

Proceedings before the Magistrate

2.  The Applicant faced 3 counts of theft, contrary to section 9 of the Theft Ordinance, Cap 210. Each charge alleged on a different date that the Applicant had stolen a gold bar which was the property of Color Jewels. Each charge alleged that the theft took place from the same premises in Hung Hom.  The value of each of the gold bars which were stolen varied between just over $323,000-$330,000.  The total loss was just short of $1 million.

3.  The case came on before the learned Magistrate on 28 December 2020.  Following a plea of guilty, the Applicant admitted a brief facts[1]. The essence of those facts I take from the Statement of Findings provided by the learned Magistrate[2]. Those facts are:

“2. At the material time, the [Applicant] was employed as a merchandiser selling gold to mainland China. He was required to either keep the gold in the company's safe or send the gold out to the customers. Upon an audit check in June 2018, the company found that 3 gold bars were not passed to the customers. Then, the [Applicant] confessed to his employer that he had stolen the gold bars.

3. Later on, the [Applicant] was arrested.  Under caution, he admitted that in April, May and June 2018, he took gold bars from the safe of his employer and sold them for $953,000.  He used all the money for investment. He lost all the money while trading on margin.”

4.  In short, the Applicant stole a substantial quantity of gold on 3 separate occasions from his employer.

5.  In mitigation before the learned Magistrate, the Court was told that the Applicant was 48 years of age and had a clear record.  The Court was told that he was born in India and moved to Hong Kong in 2003 with his family.  The Court was told that the wife of the Applicant was not working and his 2 daughters are still studying in secondary schools.  In 1995, the Applicant obtained a bachelor degree in India.  He worked for the company from 2003 to 2016 and then from 2017 until 2018.  He was dismissed from his employment as a result of the thefts.  At the time of the theft, he was employed as a production manager.

6.  The Applicant had the advantage of being represented by counsel before the learned Magistrate.  Counsel characterised the theft as “unsophisticated acts of theft”[3]. As counsel told the Magistrate, “Because of his position in the company, he was able to get access to these gold bars and he took them and he sold them and the money that was used was for, basically, trading in securities, margin trading”[4]. Counsel made the point that the Applicant was highly thought of by his employer because, after resigning to try his hand at business on his own account, the employer asked him back in 2017.  Counsel made the point that the Applicant confessed to his employer and then made full admissions to the police in 2 video recorded interviews.  He made the point that the plea of guilty was offered at the earliest opportunity.

7.  The Court was told that in 2012 the Applicant was diagnosed with Bipolar Affective Disorder.  The Court was also told that the Applicant had a compulsive gambling habit and it was pointed out that those with a Bipolar Affective Disorder were more prone to such gambling habits.  Counsel for the Applicant also pointed out that the Applicant had a history of health issues and survived chest cancer.

8.  The Applicant through his lawyers tendered a bank draft for $250,000 as compensation.  In the exchanges between counsel for the Applicant and the learned Magistrate it appears that the Magistrate was not greatly impressed by the amount tendered.

9.  In the result, the matter was adjourned to 11 January 2021.  A further bank draft was tendered before the Magistrate and it was accepted that the Applicant had made full restitution.

10.  It was contended by counsel for the Applicant that there had been a significant and unacceptable delay in bringing this case to its conclusion.  The parties to the proceeding accepted a chronology of events. In the Statement of Findings, the learned Magistrate noted the arrest in June 2018 but the matter was not made the subject of the charge until June 2020.  The Magistrate concluded, in this regard, “Although I accept that the prosecution required time for a thorough investigation, 2 years is, in my view, too long”[5].

11.  The learned Magistrate sentenced the Applicant on 11 January 2021.  He fixed a global starting point of 33 months’ imprisonment.  He considered that was appropriate in view of the total amount stolen[6]. The Magistrate took account of the full admissions made to the Applicant’s former employer and to the police.  He took into account an aspect of the delay.  He also took account of the clear record of the Applicant.  Finally, he took account of the full restitution that had been made.

12.  In considering sentence, the Magistrate took into account the mental illness suffered by the Applicant: the Bipolar Affective Disorder.  He noted in the medical opinion tendered before him that “The prevalence of gambling addiction is usually higher in the group of patients with Bipolar Affective Disorder”[7]. The learned Magistrate nevertheless said that he considered that there was no evidence that the mental illness suffered by the Applicant was “an effective cause” of the commission of the crimes for which the Applicant had been convicted.

13.  The learned Magistrate considered this case involved a breach of trust.

14.  The learned Magistrate was referred to authority in relation to the appropriate disposition of the case.  He referred to HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 where it was held a theft of between $250,000 and $1 million that a starting point of between 2 and 3 years’ imprisonment was appropriate.  The Magistrate noted that the total value of the gold bars in the present case was a little less than $1 million and accordingly fixed a global starting point of 33 months’ imprisonment.  He recognised that a one third discount should be given, but reduced the sentence further in the exercise of his discretion to take into account the mitigation which he recognised in this case.  In short, the mitigation which provoked the 4 months further discount was the full restitution and the delay in prosecution[8].

15.  The learned Magistrate did not accept the submissions made to him that this case merited a suspended sentence or the imposition of a probation order.  In relation to the contention that full restitution might justify a suspended sentence he held, following HKSAR v Chan Oi Ki CACC 375/2016 that while full restitution was an important mitigating factor, it was not sufficient to justify a suspension of sentence.

16.  The means by which the Magistrate determined the overall sentence was as follows:

(1)     Charge 1: starting point of 2 years’ imprisonment reduced to 16 months for the plea of guilty.  That sentence was reduced by a further 4 months’ imprisonment to reflect other mitigation, including the full restitution and delay in prosecution.  The sentence for this charge is therefore 12 months’ imprisonment.

(2)     Charge 2: starting point of 2 years’ imprisonment and the same production for plea of guilty and further mitigation a sentence of 12 months was arrived at.  The learned Magistrate ordered that 3 months of this sentence was to run consecutively to the sentence for Charge 1.

(3)     Charge 3: starting point of 2 years’ imprisonment with reductions for the plea of guilty and the further mitigation which resulted in a sentence of 12 months’ imprisonment with 3 months of that term of imprisonment to run consecutively to Charges 1 and 2.

17.  Accordingly, overall, the Applicant was ordered to serve a sentence of 18 months’ imprisonment.

Grounds of appeal

18.  The Applicant filed perfected Grounds of Appeal on 18 February 2021.  The grounds of appeal are as follows:

(1)     Ground 1: the Magistrate erred in principle in adopting a single global sentence for the 3 charges before determining the sentences for the individual charges.

(2)     Ground 2: the Magistrate erred in ordering partial consecutive sentences totalling 6 months’ imprisonment.

(3)     Ground 3: the Magistrate erred in giving no discount for the mental illness suffered by the Applicant at the material time.

(4)     Ground 4: the Magistrate erred in failing to suspend the sentence of imprisonment.

Bail pending appeal

19.  Section 122(2) of the Magistrates Ordinance provides that “a judge may, on the application of an Appellant who is in custody, admit the Appellant to bail pending the determination of his appeal or any proceeding therein”.  Section 122(2) provides no criteria for the grant of bail. Nevertheless, there are general principles governing the grant of bail pending appeal which informed the discretion given to a Judge under this section.

20.  The authorities which consider the discretion to grant bail pending appeal characterised the circumstances in which bail might be granted as exceptional.  Generally, two considerations are apposite:

(1)     the Appellant must be a good bail risk on the basis of suitable terms of bail; and

(2)     the circumstances must be such that justice can only be done by the grant of bail: R v Watton (1979) 68 Cr App R 293; HKSAR v Chan Man Cheung CACC 87/2000, 26 July 2000.

21.  In relation to the 2^nd consideration, the starting point for analysis is that it is for the Appellant to demonstrate that his or her conviction or sentence is ill-founded.  Accordingly, the Court must consider whether or not to grant bail and must determine whether the grounds of appeal compel that conclusion.  The other consideration is whether the whole or a substantial part of the sentence of the Appellant might be served before the determination of the appeal.

22.  The standard that the grounds of appeal must attain before bail might be granted has been expressed in various ways.  Generally speaking, the Appellant must be able to demonstrate that he/she has a strong prospect of succeeding on appeal and that a consequence of his/her success is that he/she will be at liberty. See: HKSAR v Huynh Bat Muoi [2001] 4 HKC 643; HKSAR v Fan Ying Chao CACC 520/2000; HKSAR v Au Yeung Chun Yee CACC 438/2014 (25 April 2016, unreported); HKSAR v Fong King Choi CACC 319/2018, [2019] HKCA 487.

23.  These two considerations interact where the sentence imposed on the Appellant is such that there is a substantial risk that substantial part or all of the sentence might be served before the hearing and determination of the substantive appeal. In HKSAR v Lau Man Kin [2010] 1 HKLRD 336, §8 it was held that in such circumstances the Appellant must demonstrate that there are reasonable prospects of success on appeal.  In short, even if the sentence is such that a substantial part or all of it might be served by the time of the determination of the appeal, the Appellant must still demonstrate that the appeal has merit: HKSAR v Wong Hon Ching, San Stephen CACC 547/2003, 7 January 2004. 

Consideration

24.  This is not the hearing of the appeal against sentence.  This is simply an application for bail pending appeal.

25.  It is recognised in the authorities that the grant of bail pending appeal, especially in cases where the appeal is against sentence is an exceptional one.  That is not simply to describe the total number of applications for bail pending appeal against sentence and look at the number of applications which of been granted.  It is also to recognise that a Court considering bail pending appeal against sentence must accord respect to the determination of the sentence and recognise that the appropriate venue for the determination of the merits of the sentence appeal is not with this Court. It is small wonder that the authorities tend to suggest that bail should only be granted only if the Court concludes that justice can only be done by the grant of bail.  Although the authority which makes this assertion was a bail pending appeal against conviction case, in my judgement, the underlying principle is applicable in cases of an appeal against sentence.  Indeed, although it forms no part of my reasons, there is at least a respectable argument that applies with even more force in sentence appeal cases.  The task imposed upon this Court is to determine whether the Applicant has a strong prospect of success.  If there is such a strong prospect of success and the Applicant on the basis of that success would be set at liberty, then the justice of the situation might support the conclusion of bail pending appeal.  Similarly, if the view of the Court considering bail pending appeal against sentence was that a substantial portion of the sentence might be served before the determination of the appeal and that there was potential merit in the appeal then, again, the justice of the situation might support the conclusion of bail pending appeal.

26.  Both parties have provided very helpful written submissions.  I am grateful for those.

27.  It seems to me that the only circumstances in which I could consider that bail pending appeal against sentence was justified in the instant case was either:

(1)     there was a strong prospect that the appellate court would consider that the sentence imposed on the Applicant should have been a non-custodial sentence either by way of probation or suspension of sentence; or

(2)     if probation or suspension of sentence was not such a strong prospect, there was a strong prospect that the appellate court would consider the sentence imposed on the Applicant should be not just a lower sentence, but so substantially lower for the Court considering bail pending appeal against sentence to conclude that there was a reasonable prospect that the sentence would be so low that a substantial portion of that sentence would be served by the time of the appellate hearing.

28.  In my judgement, starting point for any analysis must be that the learned Magistrate was correct in concluding that this was a theft involving a breach of trust.  The employer of the Applicant reposed in the Applicant such trust in the handling of valuable property on the part of the employer that it could either be left in the safe or otherwise disposed of in the manner described in the brief facts.  On 3 separate occasions, the Applicant breached that trust.  Although the charges do not aver a specific date on which the appropriation of property took place, it is, in my judgement, unrealistic to view the acts of appropriation as part of the same course of conduct.  Separate sentences were required for each appropriation.

29.  The analysis that the learned Magistrate undertook was to identify an overall starting point and then reduce that for the plea of guilty and the medication which he recognised. He then imposed individual sentences and by ordering the 2^nd and 3^rd Counts to be sentenced in the way that he did, he achieved the overall result that he had identified at the outset.

30.  The Perfected Grounds of Appeal criticise the methodology of the learned Magistrate.  There may conceivably be some force to that submission.  The problem is, so far as I can see, is that even if the appellate court criticised the methodology adopted by the Magistrate and after considering all the circumstances the appellate court still considered an immediate custodial sentence was warranted, it is difficult to see how such a sentence might be, in the final result, different if a different methodology was undertaken.

31.  If, for example, a custodial sentence was imposed on each of the individual appropriations, the guidelines would suggest a starting point of something of the order of 2 years for each of the individual charges.  That, as a totality would almost inevitably be considered too great.  Leaving aside the level of 4 months’ reduction for mitigation as identified by the Magistrate, it seems to me that however sentence was adjusted for totality and appellate court might, if it disagreed with the approach taken by the learned Magistrate, come to approximately the same outcome.  Indeed, on at least one methodology which might be considered as a respectable alternative, the Applicant might, in the result be worse off. It is extremely difficult to see that he would be better off.

32.  The next issue to be considered is the level of discount appropriate for restitution and other mitigation.  Here, the Magistrate took a global view.  I could not see how it could be successfully argued on appeal that the reduction for the matters that the Magistrate considered to be appropriate matters of mitigation was too low.  Nevertheless, I can see an argument that refusing a discount, because the thefts were not caused by the Applicant’s mental illness, is setting the bar too high.

33.  The authorities reveal that if an accused is suffering from a mental illness which played a part in the commission of the offence, the Court may properly allow a discount for sentence: HKSAR v Chiu Peng [2002] 1 HKLRD 185, §16.  This is also recognised in HKSAR v Tsui Mei Ying [2002] 4 HKC 689, 691; HKSAR v Yeung Kwun Kuen [2014] 1 HKC 463; HKSAR v Chan Sau Lan, Becky [2018] 2 HKC 548, §2, 33.  It appears that Courts may be less ready to impose a discount where deterrence is an important component of the sentencing rationale: HKSAR v Chan Sau Lan, Becky.  Nevertheless, even where deterrence is considered paramount there are cases which would justify according a discount: HKSAR v Chiu Peng; HKSAR v Tsui Mei Ying.  The rationale appears to be in those cases that the discount might be considered where the mental illness diminishes the criminality or culpability on the part of the accused.

34.  While it would be open to the Applicant to argue that he is Bipolar Affective Disorder contributed to the deliberate taking on 3 occasions of valuable property which the Applicant, by reason of his position would readily appreciate he had no right to take, it does not follow that the fact that the Applicant is suffering from a mental illness that a discount for that mental illness will be accorded to the Applicant.  The authorities recognise that there must be a case-specific or individualised assessment of whether to accord to the accused a discount and, if so, what that discount should be.  There is a strong component of deterrence built into the usual sentence for theft of significant amounts of property in breach of trust.  That would have to be considered by the appellate court as well.  In my judgement, given that the evidence is that Bipolar Affective Disorder is well-managed, and appellate court could easily consider little or no discount is appropriate in these specific circumstances.

35.  In short, it would be open to the Applicant to argue that that the learned Magistrate erred in principle in holding that he could not give a discount to the Applicant because his Bipolar Affective Disorder did not cause the offences.  For my part, I think this is strongly arguable if not unanswerable.  However, on the assumption that the principle is that a discount may be given, if the mental illness contributed to the commission of the crime in question, that leaves the appellate court with the decision as to what discount is appropriate, because the appellate court would have to re-sentence the Applicant taking this factor into account to the extent that the appellate court thinks appropriate.  I cannot say in this re-sentencing process that the Applicant would receive any discount, and I certainly cannot say that he would receive such a discount as would engage the bail pending appeal principles so as to justify the grant of bail.

36.  However, the problem with this is that on an appeal against sentence, the appellate court is by nature respectful of the exercise of discretion on the part of the sentencing court.  That reflects a wider deference by appellate courts to decisions made at first instance by a Court exercising a discretion reposed in it.  In short, the threshold for interference in the exercise of discretion at first instance including, and probably more particularly in relation to discretions in relation to sentence is substantially greater than the appellate court saying “I respectfully disagree”.  That I might have discounted these sentences to a greater degree, had I been sitting at first instance is, accordingly, not to the point.  That is even more so when setting in determining whether to grant bail pending appeal against sentence.

37.  Accordingly, on the assumption that the appropriate outcome was an immediate custodial sentence, even if I was to say that the methodology of the learned Magistrate was wrong and that the discount for other factors was too low either because account should have been taken of the mental health of the Applicant or because the other factors were not sufficiently taken into account, I cannot say that any such adjustments as might be justified would render the sentence so substantially lower for me to say that by the time of the determination by the appellate court that a substantial point of that sentence which was imposed would have been served so as to cause injustice.

38.  It seems to me that the only real issue for consideration on this application for bail pending appeal against sentence is whether a non-custodial sentence should have been imposed given the mitigation available to the Applicant.  The most powerful argument that the Applicant has in this regard is in relation to the issue of restitution.  Generally speaking, as was made plain in the decision of the Court of Appeal in HKSAR v Chan Oi Ki (above) restitution alone would not justify the suspension of an otherwise appropriate sentence.  That there may be such cases is not an issue for debate.  The question is, could I say that there is a strong prospect that an appellate court hearing this case would say that this is the case.  Perhaps, I should add to that the question might be framed as to whether all of the mitigating circumstances including, potentially, the mental health component would lead to suspension.  I cannot say that there exists such a strong prospect.

39.  The ultimate concern of bail pending appeal against sentence is to say that the only way that justice could be served would be to grant bail pending appeal.  I cannot say that. That said, I recognise that there are at least respectable arguments available to the Applicant.  The pressures upon those who conduct such appeals are immense in these specifically difficult times.  Nevertheless, although I am satisfied that the Applicant would be an appropriate bail risk, I am firmly of the view that bail pending appeal is not the appropriate course in this case.  I will, nevertheless, request as persuasively as I can, those in charge of listing to bring this case forward for appellate resolution at the earliest possible time.

40.  For these reasons, the order of this Court is that the application is refused.