HKSAR v. CHU ON CHI

[English Translation]
CACC 484/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.484 OF 2006

(ON APPEAL FROM DCCC No.899 of 2006)

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JUDGMENT

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Hon Cheung JA (giving the judgment of the Court):

1. The Appellant pleaded guilty in the District Court to six counts of fraud, contrary to section 16A of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong, and was sentenced to 20 months’ imprisonment by Deputy District Judge Woodcock.  Having obtained leave, the Appellant now appeals against sentence.

Facts 

2. In 2004, the Appellant, without the consent of her employer, made use of her employer’s particulars to apply to six credit card companies for credit cards.  Five of the applications were successful and the Appellant was therefore issued with the credit cards as particularised in Charges 1, 2, 3, 5 and 6 against her.  She used four of the cards (namely, the cards involved in Charges 1, 2, 3 and 6) and spent approximately $120,000 in various transactions.  She has never used the credit card involved in Charge 5.

3. On 21 December 2004, the police received a complaint and arrested the Appellant on the same day.  She admitted to the offence both at the time of arrest and in the subsequent records of interviews with the police.  On 21 December, 22 December 2004 and 13 April 2005, she provided the police with a total of four cautioned statements.

4. On 6 July 2005, the Appellant was given an unconditional discharge by the police.  However, she was arrested by the police again on 11 September 2006 and was prosecuted and brought to the Eastern Law Courts on 22 September 2006.  The case was subsequently transferred to the District Court.  At the first hearing before the District Court on 27 October 2006, the Appellant indicated that she would plead guilty to all the charges.

5. The Appellant pleaded guilty to the six charges on 13 November 2006 before Deputy Judge Woodcock.  On 27 November 2006, Deputy Judge Woodcock determined the sentence as follows: a starting point of 3 years’ imprisonment was adopted for Charges 1, 2, 3 and 6.  The term was reduced by one-third on account of the Appellant’s guilty plea and then further reduced by 4 months as the Appellant had paid off all credit card debts.  The term was therefore reduced to 20 months.  For Charges 4 and 5, a starting point of 2 years and 6 months was adopted and the term was reduced by one-third to 20 months on account of the Appellant’s guilty plea.  All sentences were to run concurrently, making the total term of 20 months.

Breach of Trust

6. The present case involves a breach of trust.  The Appellant made use of her employer’s personal particulars to apply for and obtain a number of credit cards and then used four of them.  For the four charges in respect of which the credit cards had been used, we consider the starting point of 3 years adopted by Deputy Judge Woodcock to be appropriate.  It was also appropriate to reduce the term by 4 months on the ground that the Appellant has paid off all outstanding sums resulting from the transactions she made with those four credit cards.  For the remaining two charges, in view of the fact that one of the credit card companies did not issue the Appellant with a card and that the Appellant did not use another credit card issued, it was appropriate for Deputy Judge Woodcock to adopt 2½ years as the starting point.  Nor do we see anything improper in the order for concurrent sentence.

Delay in prosecution

7. However, this case has an exceptional feature, namely a delay in prosecution.  Upon being arrested on 21 December 2004, the Appellant admitted to all the offences with which she subsequently came to be charged.  However, she was not formally charged until 22 September 2006.  This translates to a delay in prosecution for as long as 21 months.

8. In a detailed written submission, Mr. Lai, Acting Senior Government Counsel for the Respondent, pointed out that the four cautioned statements provided by the Appellant during those 21 months did not cover the entire prosecution case, for example:

(1)The statements did not reveal whether any other undisclosed credit cards and victims were involved, the actual number of transactions and amounts involved, the actual number of cash overdrafts and amounts involved, etc.;

(2)The police had to collect evidence from six credit card centres, and three of them supplied complete information, documents and/or statements only at a late stage;

(3)It took time for the police to conduct investigations on and collect evidence from the shops where the transactions had been made in order to obtain particulars of the transactions.  Since as many as 19 shops were involved and some of them had relocated during the investigation period, the police needed time in locating them.  Furthermore, as the transactions were made quite some time ago, it took time for the shops to check the relevant records; and

(4)The police sought legal advice from the Department of Justice twice, namely on 17 February 2006 and 7 July 2006.

9. In our view, much as the police needed time to collect evidence, a delay of 21 months was still an inordinate one.  The offences admitted by the Appellant at the very beginning were exactly the same as those with which she was charged in the end, and no further charges were laid against her following police investigations.  In our judgment, the Respondent has failed to give good reasons for the delay.

10. Where there has been a delay in prosecution, the sentencing court must take it into account.  In particular, where the defendant rehabilitated, resumed work or repaid debts during the period of delay, the court will consider reducing the term of imprisonment, passing a suspended sentence or imposing a punishment other than an immediate custodial sentence, such as a community service order.

11. Secretary for Justice v. Hui Siu Man [1999] 2 HKLRD 236 and HKSAR v. Chan Yuk Kwan CACC 26/2001 are two of the cases that illustrate the court’s approach to a delay in prosecution.  In Hui Siu Man, which also involved an offence of a breach of trust, there was a 12-month delay in prosecution.  The trial judge sentenced the defendant to 21 months’ imprisonment but suspended for 3 years, and this sentence was affirmed by the Court of Appeal.  In Chan Yuk Kwan, where prosecution was delayed for 18 months, the Court of Appeal arrived at the final sentence by taking a discount of 50% from the starting point.  See also HKSAR v. Chiu Peng [2001] 1 HKLRD 185.

12. In the present case, the sentence imposed by Deputy Judge Woodcock has not taken into account the delay in prosecution.

Circumstances of the present case

13. Subsequent to her arrest, the Appellant not only paid off all outstanding debts, but was also employed by another company as a secretary between January 2005 and October 2006.  Following the sentence imposed by Deputy Judge Woodcock, the Appellant has to date been imprisoned for more than 8 months.  If she is good behaviour, she can expect to be released on 23 December of this year.  In light of the exceptional feature of the present case, namely the long and inordinate delay in prosecution, and taking into account that the Appellant rehabilitated, resumed work and repaid the debts during the period of delay, the sentence should be varied to enable the Appellant to be released immediately.

Conclusion

14. We allow the appeal and order that the Appellant be released forthwith.