HKSAR v. CHAN OI KI

CACC 375/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 375 OF 2016

(ON APPEAL FROM DCCC NO 65 OF 2016)

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J U D G M E N T

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1.  The applicant seeks leave to appeal against her overall sentence of 12 months’ imprisonment imposed by HH Judge Casewell (“the judge”) on 21 November 2016, having pleaded guilty on 17 October 2016 in the District Court to two charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.  On 7 December 2016, the applicant filed a Notice of application for leave to appeal against her sentence.

The facts

3.  The applicant agreed to the following facts. She had been employed by Forda Arts and Printing Co Ltd (“Forda”) on 1 September 2015.  Forda was owned by Lo Chung Yip (“PW1”), who also owned another company known as Calex Limited (“Calex”).  Forda had a bank account with HSBC, while Calex had a bank account with OCBC Wing Hang Bank.  PW1 was the sole signatory to both accounts.

4.  The applicant’s job duties included accounting and miscellaneous matters in respect of both Forda and Calex, for which she was provided with the online banking password and the HSBC security PIN device (“the Device”) for the bank account of Forda.

5.  On 29 September 2015, the accountant of Forda (“PW2”) requested the applicant to return the Device to him for internal audit purposes. On the next day, the applicant returned a device, but it was discovered that it did not to belong to Forda.  Both PW1 and PW2 then checked Forda’s HSBC account and discovered that HK$20,000 had been transferred from Forda’s HSBC account to the applicant’s own bank account on 23 September 2015 without authorisation.

6.  Upon being confronted by PW1 and PW2, the applicant admitted that she had transferred the HK$20,000 from Forda’s account to her own, through the HSBC online banking system.  She agreed to repay the sum, which she eventually did.  However, the applicant was dismissed from her job.

7.  It subsequently came to light that two cheques had also been drawn from Calex’s account without PW1’s authorisation, namely (i) a cheque drawn in favour of the applicant for HK$35,000 on 29 September 2015; and (ii) a cheque drawn in favour of Treasure Express International Mortgage Limited Hong Kong (“Treasure Express”) for HK$1 million on 23 September 2015.  These two cheques were the subject matter of the two charges against the applicant.

8.  Only PW1, PW2 and the applicant had access to the cheque books of Calex, which had the company chop of Calex affixed in advance to each cheque.  PW1’s signature was also required before the cheques could be issued, but he had never signed the two cheques in question, and there was no reason why Calex should have had to make payment in such amounts to either the applicant or Treasure Express on the respective dates of the cheques.

9.  It subsequently transpired that in April 2013, Treasure Express had granted the applicant a second mortgage in the sum of HK$1.8 million in respect of a property solely owned by her.  In June 2015, the applicant made another mortgage loan application to Treasure Express for the sum of HK$1 million.  Treasure Express had, however, requested that she repay the outstanding mortgage loan by 24 September 2015.

10.  On 23 September 2015, the director of Treasure Express (“PW3”) received a call from the applicant stating that she had deposited a cheque for HK$1 million into Treasure Express’s bank account.  Upon enquiry as to the source of the cheque, the applicant said it was issued by a company owned by a friend of her husband.

11.  The applicant was arrested on 11 November 2015. By pleading guilty, she accepted that she had stolen the two choses in action, which were property belonging to Calex.

Mitigation

12.  The solicitor acting on behalf of the applicant submitted in mitigation that the applicant was 27 years of age and from a single-parent family.  She had a 3-year-old daughter with her boyfriend.  She was, at the time of mitigation, working as a part-time storekeeper earning HK$7,000 a month.  It was submitted that the applicant was “a victim of circumstance”, and had taken out the mortgages after she had lost money in a trading company she had started with her boyfriend, when interest payments could not be met.  She had wanted to alleviate the financial burden on her family and had been under severe stress from debt collectors.

13.  The applicant’s solicitor asked the court to obtain a community service order report, but the judge considered the option unrealistic.  It was submitted that the applicant would not re-offend in the future, and that her absence from her family would have an adverse impact on her daughter.  The cases of HKSAR v Yeung Kwun Kuen[1], HKSAR v Chu Lai Sze[2], HKSAR v Tong Yee Chun[3]and HKSAR v Leung Pui Shan[4]were relied upon in support of the passing of a non-custodial sentence.

14.  The mitigation was spread over four hearing days.  Full restitution in the sum of HK$1,035,000 was made by the third hearing day, and confirmed to have been fully honoured on the fourth hearing day.

Reports

15.  The judge called for social welfare and probation reports.  The probation report noted the applicant’s background, and that she had a good relationship with her boyfriend, whose family she was living with.  The social welfare report stated that the applicant’s daughter had been looked after by the applicant’s mother since birth.  The child was evidently happy to live with her grandmother, although both the grandmother and the applicant’s boyfriend commented that the child would miss her mother if she was absent for a period of time.

Reasons for sentence

16.  In his reasons for sentence, the judge was satisfied that the arrangements made for the applicant’s daughter were the best that could be made in the circumstances, for which credit should be given to the applicant and her family.  The judge also accepted that full voluntary restitution had been made.  The remorse shown by the applicant was genuine and the judge considered there was no chance of the applicant repeating such offences again.

17.  However, the offences were serious, involving a breach of trust, for which the guidelines in HKSAR v Ng Kwok Wing[5] wereengaged.  The lower end of the 3 to 5 years’ imprisonment range after trial for thefts involving a breach of trust of between HK$1 million and HK$3 million, namely a starting point of 3 years’ imprisonment, was adopted.  The judge also considered the balance between the seriousness of an offence and the rights of a child to family life when sentencing a parent[6].

18.  In respect of Charge 1, the judge adopted a starting point of 3 years’ imprisonment.  9 months was deducted from the starting point in view of the making of full restitution, and a further 9 months deduction was made “to represent the welfare aspect of the deprivation of mother and child”[7]. A full one-third discount was then applied to the reduced starting point of 18 months’ imprisonment.  As a result, the applicant was sentenced to 12 months’ imprisonment.

19.  As for Charge 2, a lower starting point of 6 months’ imprisonment was adopted, reduced by half and further discounted for her plea to 2 months’ imprisonment.  Both sentences were ordered to run concurrently.

Grounds of appeal

20.  In a letter to the court dated 22 February 2017, the applicant relied on the decisions in HKSAR v Chu Lai Sze (supra) and HKSAR v Leung Pui Shan (supra), submitting that there were other possible means to rehabilitate her, which could bring about her meaningful contribution to society, such as a community service order. Further, the circumstances under which she had committed the offence should be borne in mind.  She reminded the court that she was of previous clear record and had committed the offence because she was overwhelmed by the pressure from the mortgage finance company.  She said she was now anxious about the financial situation of her mother and daughter.  She claimed that she had reflected deeply on her position whilst in prison, and that the deterrent sentence had achieved its purpose.

The respondent’s submissions

21.  Ms Parwani, on behalf of the respondent, pointed out that the starting point taken by the judge was correct and in accordance with established authority, namely HKSAR v Ng Kwok Wing (supra).

22.  It was submitted that the discount of 9 months for the restitution made was appropriate, if not generous.  The applicant’s reliance on HKSAR v Chu Lai Sze was misplaced, since the appellant in that case had not intended to compromise either the interests of the bank or the customer.  Ms Parwani relied upon the case of HKSAR v Chiu Peng Richard[8] to submit that care must be taken so that undue weight is not placed on restitution as a mitigating factor.  The discount of 9 months’ imprisonment for restitution alone amounted to a discount of 25% from the starting point.

23.  In relation to the applicant’s background, it was argued that there appeared to be discrepancies between what was submitted in mitigation and the social welfare report, the former giving an impression that the applicant had all along taken care of her daughter.  Ms Parwani said that the judge had nonetheless given a generous discount for the welfare considerations he discussed.  The background to the facts admitted by the applicant disclosed that she had taken money from the company on three occasions, yet she was only charged in respect of two incidents.  It was submitted that nothing warranted the imposition of a suspended or non-custodial sentence.

Consideration

24.  One must start with the general principle in relation to significant thefts committed in breach of trust that[9]:

“In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small.”

The present case did not involve a small amount.  Nor is full restitution an exceptional circumstance meriting suspension of a sentence of imprisonment in a serious case[10]. Were it otherwise, a defendant with means, or access to other funds from, for example, relatives or friends, would be able to buy his or her way out of imprisonment.

25.  Furthermore, there were two separate and distinct offences, for which there could have been a consecutive element in sentencing as between the two charges.  As it was, the judge exercised his discretion to order both sentences to run concurrently with each other.

26.  The overall discount from the starting point in this particular case was no less than 66%.  Such discount is very generous indeed, and represents twice the discount the applicant would have been entitled to receive for her timely pleas of guilty alone.  I cannot see any reasonable argument, at this stage, that the appellate court would be disposed to say that such a sentence was either wrong in principle or manifestly excessive.

27.  The judge considered all of the matters which might be said to be in the applicant’s favour.  I do not see any valid complaint in respect of a sentence which not only reflected those matters but was also, at the end of the day, very lenient indeed.

28.  The application for leave to appeal against sentence is refused.  I advise the applicant that she has the right to renew her application for leave to appeal to the Court of Appeal, but she is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of the application.