HKSAR v. LEUNG KWOK MEI

HCMA254/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 254 OF 1998

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J U D G M E N T

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1. The Appellant pleaded guilty before Mr R.G.M. Edwards in North Kowloon Magistracy to three charges, one of theft of two credit cards issued to two customers of the International Bank of Asia where she was working as a teller, and two charges of obtaining property by deception in that she had, on two different occasions, obtained certain electronic and hi-fi equipment from two shops on the strength of the two stolen credit cards pretending that she was the holder of those two cards.

2. She pleaded guilty on 3rd February 1998, after which the learned Magistrate called for a probation officer's report. When the report was to hand on 9th March 1998, the learned Magistrate, after considering the report, sentenced the Appellant to eight months' imprisonment on each charge, to be served concurrently.

3. The facts of the case are that the Appellant, whilst working at the bank, had stolen these two credit cards which were addressed to two different customers. She then, on the strength of one of the stolen cards, purchased or obtained goods at 20 different shops, and the total value of the goods obtained at these 20 shops came to $16,897.30.

4. The loss was detected by the Appellant's Security Manager on 15th July 1997 and the report was made to the police on 21st July 1997. The Appellant was arrested by the police on the same day. Under caution, she admitted to the police to have stolen the two credit cards. The police also recovered the properties that she had obtained by deception at her residence. For some reason, she was not charged by the police until 17th December 1997.

5. However, on 28th July 1997, which was a week after her arrest, the Appellant made full restitution of the $16,000 odd to the International Bank of Asia, her former employer. She was naturally dismissed from the bank, and I am told by her Counsel at today's appeal, Mr Yu, that because of this conviction, she would never be able to again work in the banking field. She was fortunate in that after she was dismissed by the bank as from 18th September 1997, she worked as a secretary in a solicitors firm until she left that employment. She is now working and has been working since 1st August 1998 as a secretary at an engineering company where she is earning $10,000 a month. She is on probation for three months, but on satisfactory performance, she would be regarded by the company as one of their permanent staff. In addition, on completion of the first full year's service, she would be entitled to one extra month's salary as double pay.

6. When the learned Magistrate sentenced her, he would have been informed by the Probation Officer, in the probation officer's report, that at that point of time, the Appellant was working in a solicitor's firm. The learned Magistrate's sentence of eight months immediate imprisonment was entirely proper. It was also an appropriate sentence having regarded to the fact that the Appellant was in clear breach of trust. Mr Yu has, in fact, urged upon me the claim that the sentence is manifestly excessive.

7. Mr Tam, appearing for the Prosecution, has submitted authorities to support his submission that the sentence is not manifestly excessive nor wrong in principle. Mr Tam has also submitted that a plea of guilty does not constitute in law an exceptional circumstance to enable a sentencing court to deviate from the usual rule of immediate imprisonment in a breach of trust case. He has also quoted cases to support the proposition that full restitution can be a factor which shows remorse, but if it is clear that the restitution was made simply to have a reduction in the sentence, then it should be regarded in that light.

8. Having said that the sentence passed by the learned Magistrate was entirely proper, it is of course, in the normal case, difficult for me to allow the appeal. All the factors which Mr Yu has relied upon were placed before the learned Magistrate and were fully considered by the Magistrate before he passed sentence. Just because I myself might have passed a different sentence is, of course, not a ground for me to allow the appeal.

9. There is, however, one matter which unfortunately was not brought to the attention of the learned Magistrate, and that is the fact that since 1st March this year, the Appellant has been working as a voluntary worker at a Home for the Aged in Kwai Chung. Mr Yu has produced for my perusal a letter signed by the Center dated 18th August 1998 which says that from 1st March until today, the Appellant has performed her duties conscientiously and has shown support and a caring attitude for the elderly. Doing voluntary community work is of course a matter which can properly be taken into account as a mitigating factor.

10. The other matter that I am personally quite concerned about is the fact that she is now in gainful employment and if she were to have to serve the sentence of imprisonment, obviously she would lose that job, and when she is released from prison, there is no guarantee that she would be able to find a similarly good job.

11. The fact that she has been doing voluntary work which was not brought to the attention of the learned Magistrate is a matter which can enable me to allow the appeal. The Probation Officer recommended that the Appellant be ordered to perform community service and the number of hours of community service was recommended at eight hours per week, up to a maximum of 240 hours. I understand from Counsel that when the Appellant was informed of this recommendation, she was quite enthusiastic and that would, of course, be consistent with the fact that she has been doing voluntary work at this Home for the Aged since 1st March 1998.

I think it is important that the wrong message does not go out that just because a person commits a breach of trust and steals and then makes full restitution, it does not mean that he or she will be able to get off scot free. This Appellant is clearly remorseful for her misdeed but she cannot go unpunished for this offence. I think the justice of the case can be met by my allowing the appeal and ordering her to do community service. I do not want the community service order to interfere too much with her work at the Home for the Aged which I hope she will keep up. So instead of ordering the maximum of 240 hours, I will only order 180 hours of community service.