HKSAR v. LAW CHIT WANG

DCCC 640/1995

[2020] HKDC 1238

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 640 OF 1995

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of theft, contrary to section 9of the Theft Ordinance[1] and one charge of failing to surrender to custody without reasonable cause, contrary to section 9L (1) and (3) of the Criminal Procedure Ordinance[2].

2.  Full particulars of the offences are set out in the amended summary of facts admitted by the defendant.

Theft

3.  In summary in March 1994 Chung Chee Commercial Consultant Company (“Chung Chee”) was registered as a debt collecting business.  The defendant was the sole proprietor of Chung Chee.

4.  In April 1994 Guangdong Foshan Municipal No. 6 Radio Factory (“Foshan”) authorised Chung Chee to collect a debt of $600,928.82 from Sam Loong International (“Sam Loong”).  A contract and a letter of authorisation were signed by Foshan and Chung Chee.

5.  On 29 April 1994 the defendant and four others attended the office of Sam Loong to collect the debt.  Mr Hon, the managing director of Sam Loong, handed over one cash cheque in the sum of $70,000 and three post-dated cheques (dated 3 May, 16 May and 31 May 1994) in full settlement of the debt.  The defendant issued four receipts which he signed.

6.  Despite repeated requests Chung Chee failed to remit the monies received from Sam Loong to Foshan whereupon Foshan made a report to the police. 

7.  Bank records revealed that the defendant had cashed the $70,000 cheque.  The three post-dated cheques had been deposited in the bank account of Chung Chee.  The defendant, who was the sole signatory of the bank account, withdrew the money.

Arrest

8.  The defendant was arrested on 23 March 1995 at the Immigration Counter at Lo Wu when he attempted to leave Hong Kong for Mainland China. 

9.  During a house search the police seized the company chops and cheque book of Chung Chee.  The company chops matched with the stamp impressions found on the contract, letter of authorisation and the four receipts.  Forensic examination confirmed the defendant’s signature on the four receipts and the bank documents.

10.  Under caution the defendant admitted, inter alia, that he set up Chung Chee at the request of a friend called “Ah So”; he did not know the full name, address or phone number of “Ah So”; he gave all the money to “Ah So”; and that he gained $60,000 from the incident.

Failing to surrender to custody without reasonable cause

11.  The defendant failed to attend court for trial on 29 December 1995.  A warrant of arrest was issued.  On 11 May 2020 the police arrested the defendant when he attended the Immigration Department to apply for a new identity card.

12.  Under caution the defendant admitted, inter alia, that he failed to attend court because he was scared; he did not return home or contact his family members; he did odd jobs which did not require him to display his identity card; he was homeless and that recently he bumped into a friend who told him that his eldest daughter had passed away in a car accident therefore he felt he should now face the consequences of his action in 1994.

Mitigation

13.  In passing sentence, I have carefully considered the oral and written submissions of Mr Fung, who adopts the antecedent statement submitted to court detailing the defendant’s background[3]. 

14.  I take into account the defendant has a clear record.

Guidelines

15.  Mr Fung submits that the guidelines in  HKSAR v Cheung Mee Kiu apply[4].  Although Chung Chee was entrusted to collect the debt this is not the classic breach of trust case concerning theft from employer.   The guidelines do however provide assistance to the court in determining the appropriate sentence. 

16.  In oral submission Mr Fung informs the court that his instructions are that Chung Chee was not set up for illegal purposes and that only after the defendant knew Mr Hon would repay the debt did he decide to pocket the money.  I note the defendant is unable to pay compensation[5]. 

17.  Taking into account the sum of money stolen, the role of the defendant, no restitution has been made and the clear record of the defendant, I am satisfied the proper starting point after trial is 2 years and 4 months’ imprisonment.

Timely plea of guilty

18.  Mr Fung submits a full one-third discount should be given. I disagree.  The defendant failed to surrender to court on 29 December 1995 and was arrested in May this year, over twenty-four years later.  The defendant’s plea is not a timely plea of guilty.    

Discount

19.  The usual range of discount afforded to a defendant who has absconded is about 20% to 25%[6]. 

20.  In HKSAR v Chow Tak-fuk Stock JA observed:[7]

“Whilst the courts must always encourage persons to surrender, so that some credit for that fact will normally be given, those who might be minded to flee should not be led to believe that if ultimately they return they will be in no worse position than had they not fled in the first place.”

21.  I am satisfied the appropriate discount is one of 6 months’ imprisonment which is a discount of just over 21% and which reduces the sentence on charge 1 to 1 year and 10 months’ imprisonment.

Failing to surrender

22.  The sentence for failing to surrender to court partly depends upon how long after failing to surrender a defendant is re-arrested and brought to court. Generally, the longer the period the longer the sentence.   

23.  Taking into account that the defendant was arrested over twenty-four years after failing to attend court, I am satisfied a starting point of 9 months’ imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty reduces the sentence to 6 months’ imprisonment.

Totality

24.  Failing to surrender to court is a wholly distinct and separate offence from the offence of theft.  In HKSAR v Ko Chun Hung the Court of Appeal, in rejecting the submission that the appellant had been punished twice for absconding, stated that by absconding the appellant had committed a fresh offence and had to be punished separately[8].

25.  A consecutive sentence is therefore appropriate subject to consideration of totality of sentence[9].

26.  I am satisfied a wholly consecutive sentence is appropriate making a total sentence of 2 years and 4 months’ imprisonment, which I am satisfied properly reflects the defendant’s overall criminal culpability on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[10].

Sentence

27.  The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 10 months’ imprisonment;

Charge 2 – 6 months’ imprisonment consecutive to charge 1.

The total sentence to be served by the defendant is 2 years and 4 months’ imprisonment.