HKSAR v. TING KIN KWAN

HCMA 236/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 236 OF 2001

(ON APPEAL FROM ESCC 4132/2000)

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J U D G M E N T

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1. The appellant in this matter was convicted on his own plea of attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance, Cap. 210.

2. On 6 March of this year, before the learned magistrate, Mr Mierczak, the plea of guilty was followed by a most telling mitigation which was advocated by the appellant's barrister Mr Mitchell-Heggs.

3. Something should be said of that mitigation. It was to the effect that the appellant had, for the past 17 or 18 years, led a blameless life, that he had family roots in Hong Kong and Macau, and was in employment. It appears, however, that he had a weakness for gambling and lost a greater sum than he could afford in the gambling establishments of Macau. As a result, in borrowing moneys, he fell into the hands of loan-sharks.

4. In order to recover the moneys due, it appears that the appellant was persuaded to enter into a fraudulent scheme in terms of which he would make use of an accident insurance policy which he had earlier taken out. The scheme was simple in nature. The appellant pretended to have been involved in some form of accident in the mainland. Various hospital documents and the like were prepared, all of them of course being false, and a sum in excess of US$20,000 was claimed from the insurance company. It appears that, at one stage, the insurance company was ready to pay out this sum but it learned of the fraud being perpetrated upon it and officers of the ICAC were called to assist.

5. The appellant was arrested at the end of May of last year and was subsequently charged with the offence to which he pleaded guilty in October of last year. Shortly after he was charged, the grown-up daughter of the appellant, who was at that time with child, was tragically involved in a motor accident in which she was struck by a vehicle. She lost the child and went into a coma. She languished in a Hong Kong hospital in that condition at the time when the appellant appeared in the Magistracy in order to plead guilty and to be sentenced.

6. The learned magistrate accepted the compelling humanitarian circumstances of the accident and used it to greatly reduce the term of imprisonment which he imposed upon this appellant. The magistrate had taken as his starting point for the offence a period of imprisonment of 12 months. He reduced it by one-third by reason of the plea of guilty, leaving a term of 8 months. Thereafter, because of the tragic circumstances in which the appellant found himself, and strictly on humanitarian grounds, the magistrate exercised his prerogative of mercy and reduced the sentence by half, from 8 months to 4 months. The learned magistrate said in conclusion in his findings as follows:

"I had considered in all the circumstances whether such sentence should be suspended and I was of the view that this is not an appropriate case to do so. The message must be that persons who engage or attempt to engage in this sort of activity must go to prison."

7. Accordingly, the appellant was sentenced to 4 months' imprisonment.

8. Mr Mitchell-Heggs has appeared on behalf of the appellant again, and again has submitted a most telling plea on behalf of the appellant. I express it thus because Mr Mitchell-Heggs himself accepted that, effectively, what was being sought in this instance was the exercise of this court's mercy. Mr Mitchell-Heggs accepted that the sentence imposed could not seriously be challenged and I think that that is manifest. However, he was of the view that this court should exercise its discretion in terms of section 109B of the Criminal Procedure Ordinance, Cap. 221, which enables the court to suspend a term of imprisonment provided the offence is not an excepted offence and provided that the term imposed is not more than 2 years.

9. At the time when the appellant was sentenced, as I have said, his daughter was languishing in hospital in a coma. It was, therefore, for the appellant, at that time, an ongoing tragedy. However, on 19 March of this year the daughter died. She was cremated on 27 March of this year. A period, therefore, of almost exactly one month has now passed. It should be said that the appellant, when first arrested, did spend some time in custody, in remand, this being a period of some two weeks or more, but thereafter he was admitted to bail and remained on bail after he had been sentenced in the Magistrates Court on the basis of this appeal. Some small comfort may therefore rest in the fact that the appellant was able to have access to his daughter from the time of her accident until her death, and thereafter, indeed, for the initial cremation ceremonies.

10. Mr Mitchell-Heggs says that the appellant being of the Buddhist religion is still obliged to fulfil a number of religious ceremonies and that he is essentially the senior male in the family and is therefore the focus of these obligations, both to the soul of the deceased and to the mourning of the family members. I accept that that may well be the case.

11. Mr Mitchell-Heggs has emphasised what he calls the tragic irony of the death of the daughter. He has put it this way, namely, that the appellant had committed the offence of attempting to defraud an insurance company on the basis that he himself had been involved in an accident when, in fact, his daughter shortly thereafter was, in truth, involved in just such an accident, resulting in her eventual death. It was, said Mr Mitchell-Heggs, almost a case of divine providence and, no doubt, in his guilt, the appellant believes that to be the case.

12. The difficulty that I face in this matter is that while obviously it is a matter to be considered, I do not believe that this court can place too much weight on such tragic ironies. They do occur in life but, in my judgment, in substance, what I am faced with is not so much the terrible and harsh ironies of coincidence but, rather, with the tragic death of an immediate family member. That is the way, essentially, I must look at the matter.

13. I believe that I must also consider that we are now facing a tragedy which is to be viewed in its historical context. By this I mean that the daughter has now passed away. Indeed, she has been gone for over a month. The cremation ceremony has taken place. As I have said, providence had it that the appellant was out on bail at all critical times. There may well be certain ceremonies to be fulfilled but, in essence, what now remains is for this appellant and the other members of the family to continue with their lives. I say this because, in my view, it may have been different if we had an ongoing tragedy, but that is not the case.

14. I am of course touched by the circumstances but, just as the learned magistrate said, the offence which was committed was a most serious one. On the facts before me, it was a calculated attempt to defraud the insurance company of a large sum of money. It may well be that the appellant found himself in that situation because of his reckless gambling habits but that is neither here nor there. In the light of such a serious offence and having already, on humanitarian grounds, had his sentence so materially reduced, I do not feel that I can interfere with a sentence that was, in all the circumstances, correct in principle.

15. The appeal must therefore be dismissed.