HKSAR v. LAM WAI BUN

HCMA 1214/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1214 OF 2002

(ON APPEAL FROM ESCC 3102/2002)

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J U D G M E N T

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Introduction

1. The Appellant pleaded guilty to a charge of attempting to obtain a pecuniary advantage by deception, contrary to section 18(1) of the Theft Ordinance (Cap. 210) and section 159G of the Crimes Ordinance (Cap. 200). He was sentenced to 10 months imprisonment. He now appeals against sentence.

Summary of Facts

2. The facts disclosed that on 9 October 2001, the Appellant made an application to the ABN AMRO Bank. A Customer Service Officer ("PW1") entered the information given by the Appellant into the computer record. PW2 who is the manageress of the said bank processed the Appellant's application. On 16 October 2001, the bank received photocopied documents via the fax machine. These documents were (1) the Appellant's identity card; (2) one page of salary advice in name of the Appellant with one page of letter of employment; (3) 6 pages of bank statements in the name of the Appellant from Hang Seng Bank; and (4) one page of Hongkong and Shanghai Banking Corporation passbook in name of the Appellant. PW2 felt suspicious and the police were called in. A pre-planned operation was mounted. The Appellant was interviewed by PW3, Assistant Vice President Collection Manager of the said bank. The Appellant produced his identity card to PW3 for verification. The Appellant also signed on the photocopies faxed to the bank earlier. The Appellant was given a cashier order in the sum of $100,000 and he signed a receipt for the sum. The Appellant was then arrested by the police. Under caution at the scene, the Appellant claimed he was paid $1,000 by someone called "Ah Chan" and collected the money.

Grounds of Appeal

3. Mr William Allan, on behalf of the Appellant, complained that the learned magistrate had adopted too high a starting point (i.e. 15 months) in this case. He said the learned magistrate had failed to give full weight to the following facts:-

(1) that the Appellant was a 32-year-old first offender who had shown full remorse;

(2) that the Appellant had full support of his family;

(3) that there was a delay of one year for the case to reach the court; and

(4) that there was some encouragement on the part of the bank and the police to the Appellant to complete the offence, i.e. a pre-planned operation to trap the Appellant.

Mr Allan also complained that the learned magistrate erred when she stated in her Reasons for Sentence that an aggravating feature to the case was the "Appellant had aggravated the situation by remaining idle in the past few years" (p. 14 of the Appeal Bundle).

4. Mr Allan also complained that the learned magistrate did not cite any cases when she said the normal sentence is between 12 to 15 months even for a first offender. Given the fact that the Appellant was a first offender, even with the admitted aggravated feature that the Appellant arranged to have false documents produced by professionals in Shenzhen, a starting point of 15 months was too high. Mr Allan conceded that this is not a case in which he could either ask the court to consider a Community Service Order or a suspended sentence. He asked me to intervene by imposing a lower starting point.

The Respondent's response

5. In her written response, Ms Leung for the Respondent replied that the learned Magistrate when adopting a 15-month starting point had taken into account the Appellant's guilty plea. Clear record is normally not a mitigating factor in cases of this nature. The learned Magistrate was correct in saying that such offences normally warrants an immediate custodial sentence unless there are exceptional circumstances. The learned Magistrate was aware of the delay and had taken into account the contents of the background report. There is no question of encouragement on the part of the police to the Appellant to commit the offence, the offence was instigated by the Appellant. Ms Leung also referred me to the transcript (at p. 26 of the Appeal Bundle) to show that the learned Magistrate had not said the idleness of the Appellant aggravated the offence.

My judgment

6. Mr Allan had fairly conceded that the offence is serious in nature. He has no quarrel on an immediate custodial sentence. The only issue was whether the learned Magistrate had adopted too high a starting point. On the record before me, the learned Magistrate was aware of the Appellant's clear record, the circumstances of the offence including the pre-planned operation, the delay in bringing the case to court and the family circumstances of the Appellant both revealed in the background report and in mitigation by the Appellant's then legal representative. In my view, the learned Magistrate had not "erred in saying that the offence was aggravated by the fact that the Appellant remained idle" (as alleged by Mr Allan). It is obvious from the contents that she was referring to the financial situation faced by the Appellant at the time. With the debts the Appellant incurred as a result of gambling, his idleness aggravated the situation; not that such was an aggravating feature in the offence.

7. Although the learned Magistrate did not cite any authorities when she said the normal sentence for offence of this nature was one between 12-15 months even for a first offender, she is an experienced Magistrate dealing with this kind of cases all the time in the Magistracy. She is in a good position to make that observation. Having said that, with the background of this case and the personal particulars of the Appellant, can it be said that the 15-month starting point was manifestly excessive?

8. I wish to point out that I find no merit on the complaint that the operation was pre-planned. There was no question of either the bank personnel or the police inducing the Appellant to commit the offence. They just let the Appellant complete the offence after the Appellant instigated it.

9. After taking into account the fact that the scheme was not a very sophisticated one even though there was the aggravating feature of getting false documents from professionals in Shenzhen, that this is the Appellant's first conviction; and that the matter was hanging over his head for longer than should be; I am of the view that a starting point of 15 months was too high. I think a starting point of 12 months appropriate in all the circumstances of this case. The appeal is allowed. The sentence of 10 months is quashed. The Appellant is sentenced to 8 months imprisonment.