HKSAR v. CHU WING KUEN

[English translation – 英譯本]

HCMA 123/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 123 OF 2013

(ON APPEAL FROM KCCC NO. 4279 OF 2012)

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J U D G M E N T

1.  The appellant was charged with the following two offences:

 Charge (1): Theft;

 Charge (2): Using a false instrument.

At the Kowloon City Magistracythe appellant pleaded guilty to both chargesand was sentenced by the Magistrate as follows:

 Charge (1): 2 years’ imprisonment;

 Charge (2): 4 months’ imprisonment.

These two terms were ordered to run concurrently, making a total of 2 years’ imprisonment.

2.  He now appeals the sentence.

Facts

3.  The appellant was employed by the victim as her chauffeur.

4.  Deceived by the appellant into thinking that she could enjoy vehicle maintenance service at a favourable price, the victim handed to the appellant the vehicle registration document for him to go to BMW Concessionaires to complete the formalities.

5.  Subsequently, making use of this registration document, together with an authorization letter allegedly signed by the car owner, a notice of transfer of ownership of vehicle and a photocopy of the car owner’s ID card, the appellant entered into a contract with a motor trading company and sold the victim’s private car behind her back.

6.  The value of the private car was $1,000,000.

Reasons for sentence

7.  The Magistrate pointed out that he had taken into account the following when passing sentence:

(1) What the appellant did was well-planned and premeditated.

(2) What he did involved a serious breach of trust.

(3) The appellant was a first-time offender, but the circumstances of the case were serious and an item of significant monetary value was involved.

(4) The appellant was single but had a daughter aged 4.  He lived with his mother who was chronically ill and who underwent a fibroid removal surgery after the offence.[1]

(5) The appellant did not manage his finance well.  He owed $430,000 to a “loan shark” and had received threats.  Since selling the car, he had already paid off the debt and spent all the remaining money.

(6) The appellant indicated remorse.

8.  The Magistrate appreciated that the appellant committed the offence to rescue himself from his financial plight.  However, in view of the seriousness of the circumstances of the case, and having referred to the cases of Cheung Mee Kiu[2], Ng Kwok Wing[3], Lee Lai Kit Kitty[4] and Yeung Chiu[5], and given the appellant one-third discount to sentence for his guilty pleas, the Magistrate passed the abovementioned sentences.

Ground of appeal

9.  Mr. Paul Leung, Counsel for the appellant, has advanced the following ground of appeal: the starting point of 3 years adopted by the Magistrate for charge (1) went beyond the Magistrate’s jurisdiction as regards sentencing, and the final term of 2 years meant in effect that the appellant had not been given a meaningful discount to which he should have been entitled by reason of his guilty pleas.  The Magistrate had therefore erred in principle.

Discussion

10.  The Magistrate considered that a starting point of 3 years should be adopted for charge (1) in view of the nature and circumstances of the offence.

11.  Mr. Leung has not taken issue with that.

12.  In respect of a single charge, this starting point was indeed beyond a magistrate’s sentencing jurisdiction of 2 years.[6]

13.  In HKSAR v Li Yan[7], Mortimer VP discussed the Court of Appeal cases in this regard and laid down the proper approach to be taken by a District Judge where a starting point higher than the upper limit of his sentencing jurisdiction[8] should be adopted:

(1) Where appropriate, it is open to the judge to adopt a starting point of higher than 7 years;

(2) However, under no circumstances may the judge impose a final sentence which exceeds 7 years;

(3) If the final sentence after giving the appropriate discount for the guilty plea exceeds 7 years, this suggests that the defendant has not received the discount to which he should be entitled by reason of his guilty plea;

(4) In such a case, if the final sentence exceeds 7 years, the judge should give the defendant a meaningful discount from 7 years being the upper limit of his jurisdiction;

(5) The same applies where the final sentence is below but close to 7 years, as this suggests that the defendant has not received a meaningful discount;

(6) What is a meaningful discount is to be decided by the judge in the circumstances of the particular case;

(7) In the above situation, the judge is not required to give one-third discount from 7 years being the upper limit of his jurisdiction;

(8) A starting point which exceeds the judge’s jurisdiction includes, where the defendant is sentenced for more than one offence, the notional overall starting point.

14.  In HKSAR v BUI VAN TRUNG[9], Lunn J (as he then was) pointed out that the above approach was also applicable to cases in the magistrates’ courts.  If a magistrate took the view that a sentence beyond the upper limit of his jurisdiction[10] should be adopted, the approach to be taken should in principle be the same, whether the case involved one or more offences.

15.  I entirely agree with this view.

16.  Section 57 of the Magistrates Ordinance[11] provides that “… where 2 or more terms of imprisonment imposed by a magistrate are ordered to run consecutively in whole or in part the aggregate of the said terms of imprisonment shall not, in the case of a special magistrate, exceed 12 months and in the case of a permanent magistrate exceed 3 years ...”.

17.  Mr. Leung has submitted that in the present case the Magistrate passed sentences on two counts and ordered the terms to run concurrently, and therefore his sentencing jurisdiction was still 2 years.

18.  I agree with this view.

19.  The powers of a judge dealing with an appeal against a sentence imposed by a magistrate are set out in section 119(1)(d) and (e) of the Magistrates Ordinance (Cap. 227).

“(d) the judge may by his order confirm, reverse or vary the magistrate’s decision or may direct that the case shall be heard de novo by a magistrate or may remit the matter with his opinion thereon to a magistrate, or may make such other order in the matter as he thinks just, and by such order exercise any power which the magistrate might have exercised; and any decision or order made by the judge shall have the like effect and may be enforced in the like manner as if it had been made by the magistrate;

(e) the powers of the judge under paragraph (d) shall be construed as including power to award any punishment, whether more or less severe than that awarded by the magistrate, which the magistrate might have awarded;”

20.  In the present case the question for my consideration is whether the final sentence is appropriate.

21.  In respect of charge (1), the Magistrate adopted a starting point of 3 years, with which Mr. Leung had not taken issue.  I also consider this starting point to be within reasonable bounds of the sentencing considerations mentioned by the Court of Appeal in Cheung Mee Kiu[12] and Ng Kwok Wing[13].  However, given that vehicles are subject to depreciation, I take the view that there is room for a slight downward adjustment to the sentence.

22.  In respect of charge (2), in view of the way in which the appellant used the false instrument, as well as the purpose and consequences of such conduct, a starting point of 6 months does not in fact sufficiently reflect the nature and circumstances of the offence.

23.  Mr. Michael Tsang, Public Prosecutorfor the Respondent, has submitted that, in light of the circumstances of the two offences, the two sentences should be partly consecutive.  The suggestion being put forward is that the Magistrate was overly lenient in ordering the two sentences to run concurrently, and for this reason the final overall sentence of 2 years’ imprisonment was not manifestly excessive.

24.  In my view, it is proper and appropriate to order part of the two sentences to runconsecutively.  The use of the false document by the appellant was of course a means of stealing the vehicle, and hence the appellant’s culpability for such use overlaps with his culpability for charge (1).  Nevertheless, apart from jeopardizing the car owner, the appellant also jeopardized the motor trading company by defrauding it with the false document.

25.  Mr. Leung has submitted in this respect that the motor trading company, being a bona fide purchaser, and would not suffer substantive loss.

26.  I do not totally agree with this.  First, had the motor trading company known the truth, it would not under normal circumstances have entered into the transaction.  Second, it is true that a bona fide purchaser is protected by the law, for instance, under section 4(2) of the Theft Ordinance (Cap. 210):

“Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property. ”

However, a bona fide purchaser who has purchased goods obtained by theft is not free from disadvantage under the law: his position is, after all, less favourable than that of purchasers under normal circumstances.

27.  For this reason, and having referred to the principle laid down by the Court of Appeal in Ngai Yiu Ching[14], I consider it proper and appropriate to order part of the two sentences to runconsecutively.

28.  Given that I have considered it appropriate to order that part of the two sentences to run consecutively, I am entitled, pursuant to section 119(1)(d) and (e) of the Magistrates Ordinance, to rely on section 57 of that Ordinance and pass a sentence not exceeding 3 years’ imprisonment for the two offences.

29.  In the circumstances of the present case, I consider it just to affirm the total sentence of 2 years without having to enhance the final sentence of the appellant.

30.  For the foregoing reasons, I vary the sentence as follows:

Charge (1): 22 months’[15] imprisonment

Charge (2): 4 months’ imprisonment

I also order two months of the sentence for charge (2) to run consecutively to the sentence for charge (1).

31.  The total sentence of 2 years on the two counts remains unchanged.