HKSAR v. CHEUNG CHUN WING

CACC 447/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 447 OF 1999

(ON APPEAL FROM DCCC 595 OF 1999)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 18 August 1999, the Applicant pleaded guilty before Judge Fung in the District Court to a charge of burglary, two charges of obtaining property by deception and one charge of giving false information to a pawnbroker. In total, he was sentenced to twenty-one months' imprisonment against which he now seeks leave to appeal in rather unusual circumstances. He makes no complaint of the prison sentences as such but about the compensation order which was additionally made at the time the Applicant was sent to prison.

2. The facts were very straightforward. The Applicant was an employee at an insurance company. On 16 February 1999, after he had ceased to work for that company, he went back to his old office premises and gained entry to them by opening a combination lock and by using a key which he had retained after leaving his employment. Inside the premises, he went to the office where the keys to a number of doors were kept and then gained access to the offices of a number of managers and staff members. Inside the premises, he stole cash in various denominations and currencies. In addition, he stole watches, electronic diaries, notebook computers, a disk drive and a RAM card, two mobile phones, a gold coin and a gold Mastercard. All of that property is reflected in the first charge.

3. On the day after the burglary, the Applicant used the stolen gold Mastercard to obtain property in two shops. A few days later, the Applicant went to a pawnbroker in order to pawn one of the watches stolen in the burglary which was a ladies Rolex. This gave rise to the fourth charge because he gave a false address to the pawnbroker.

4. None of the money the Applicant stole has been recovered although some of the watches and electronic diaries were recovered. The mobile phones, the notebook computers and the gold coin were not recovered. The total value of the stolen goods amounted to $160,000 approximately, and the value of the unrecovered property was about $100,000.

5. At the time when the Applicant was sentenced, he was 22 and single. He was very well educated and had completed two years of a Bachelor of Business Administration course at the Hong Kong University of Science and Technology. He left this course in mid 1996 in order to go into a printing business and, for these purposes, he borrowed $300,000 from his elder brother and $60,000 from his girlfriend. Sadly, the business venture failed and the Applicant found himself heavily in debt.

6. During January 1999, the Applicant committed an offence of stealing letters from which he hoped to obtain valuable items. On 22 June, he was sentenced in respect of two thefts to community service on each charge for a total of 120 hours. The present offences were, of course, committed in February before the community service order was made.

7. In these proceedings in the District Court, trial counsel indicated to the judge that the Applicant was willing to compensate the victims from whom he had stolen to the extent of the outstanding balance of about $100,000. A proposal was put forward that this should be done by eighteen monthly instalments, which would be within what was hoped to be the means of the Applicant if he were granted his liberty.

8. The judge assessed this case as being one which deserved the normal starting point for a charge of non-domestic burglary and took 2 1/2 years' imprisonment as that which was appropriate. The judge stated:

"The defendant is the sole planner and actor in charge 1. The use of a retained key and knowledge of the code to break into the security system of the ex-employer's premises to practice theft on his colleagues is particularly despicable. There are no extenuating or diminishing factors to the criminal responsibility."

9. Having then considered what was said in R v Chan Sui-to and another, (1996) 2 HKCLR 128, as to the appropriate tariff for offences relating to credit card frauds, the judge then adopted 18 months as the appropriate starting point for the deception offences after trial. He then went on to say:

"I take into account the guilty pleas of the defendant. The sentence on charge 1 is reduced to 20 months' imprisonment and the sentences on charges 2 and 3 are reduced to 12 months each.

The defendant had made an offer of compensation in respect of the unrecovered property. Apart from the application of $20,000 in bail money and $3,400 seized from the defendant upon arrest as part payment thereof, the restitution of the balance lies only in a promise and I am not entitled to treat it as actual effected restitution. However, as counsel has indicated that an order of instalment is to be made, some credit ought to be given to it. I consider that it should take the form of a further discount on sentence rather than suspension of the term or other sentence in lieu of imprisonment. I shall order a further discount of 2 months to each of charges 1 to 3.

Giving false information to a pawnbroker is normally dealt with by way of fine. But as the defendant's money has been applied towards compensation, I shall order a short term of imprisonment of 2 weeks concurrent to the other terms.

I consider the proximity of the offences and the totality principle. The sentences on charges 2 and 3 shall be concurrent but partly consecutive to charge 1, making a total of 21 months' imprisonment."

10. The judge then imposed sentences which came to that total, ordering that eighteen months' imprisonment was imposed on charge 1, ten months' imprisonment on charges 2 and 3 concurrently, seven months thereof concurrent with charge 1 and three months consecutive to charge 1, and on charge 4 two weeks' imprisonment concurrent to charges 1 to 3.

11. The judge then went on to deal with compensation and what he ordered comes to this: that the Applicant was to pay immediately compensation of $20,000 which was taken from bail money at court. The Applicant was also ordered to pay $3,400 which represented the sum of money found upon him when he was arrested. The difficulty comes with what the judge lastly ordered. He said:

"The defendant do pay a monthly sum of $4,230 by 18 equal monthly instalments commencing 1 September 1999 and thereafter on the 1st day of each successive month, to be distributed as follows...."

The judge's order then set out the various losers whose property had been stolen from the offices of his ex-employers.

12. We are not entirely clear how the judge arrived at his decision to order the Applicant to make monthly payments after his prison sentence began. It is true that counsel had invited him to make such an order, but it does seem that the Applicant would only have been in a position to comply with the order if he was at liberty to do so. It may be that he hoped, by making the offer, that the judge would not send him to prison but allow him to remain on a community service order. It would, of course, have been quite wrong for the judge to have acceded to such a submission as no offender should be permitted to buy his way out of trouble if the offence is deserving in itself of a sentence of imprisonment. The judge was right to have reflected, in the sentence he passed, the Applicant's ability to make some compensation from the money taken from him on arrest and the bail money.

13. We have in mind a short passage at page 45 in the Second Edition of Cross & Cheung's Sentencing in Hong Kong where the learned authors set out a well-known principle in relation to compensation orders. This simply states:

"Before ordering that compensation be paid, the court must be satisfied that there is a realistic ability to pay on the part of the accused: R v Swann and Webster (1984) 6 Cr. App. R. (S) 22, 25."

14. We are quite satisfied that now that the Applicant has a sentence of imprisonment to undergo, he is left having to depend on his family for the payment of compensation. He has no ability himself to make any repayment whilst he is in prison. In these circumstances, we consider that the last part of the order relating to compensation was inappropriate.

15. However, today we have been told that the Applicant's family has paid four of the monthly payments amounting in total to $16,920. The Respondent was unable to confirm that these payments had been made but we accept from the Applicant that they have been. In our judgment, the compensation order should, in those circumstances, be altered to show $16,920 in place of 18 equal monthly instalments of $4,230. We have been considerably impressed by the evident degree of remorse in this case. The fact that there has been further compensation paid is something that we feel we can properly reflect in the result of this application. The court has always been anxious to demonstrate that those who make serious efforts to repay money that has been stolen will, to an extent, have that reflected in the sentence which is ultimately imposed.

16. For these reasons, we propose to give leave to appeal and, treating this hearing as the appeal, we shall reduce the sentence which was imposed by the court to the extent that the sentences of three months' imprisonment on charges 2 and 3 will be made concurrent with the eighteen months' sentence for burglary, leaving a total sentence to be served of eighteen months. This reflects a reduction of three months in the sentence.

17. The compensation order will stand, but we quash the order that the Applicant should pay eighteen monthly instalments of $4,230 by replacing that part of the order with an order simply in the sum of $16,920 which, as I have said already, has been paid by his family. To this extent the appeal is successful.