R. v. TSUI FUNG

IN THE COURT OF APPEAL

1994, No. 409
(Criminal)

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J U D G M E N T

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Ching, J.A. (giving the judgment of the Court) :

1. On 7th March 1996, the application for leave to appeal against conviction was refused by a majority. It is now necessary to deal with the application for leave to appeal against sentence.

2. The sentence imposed on each of the two convictions for theft was a concurrent term of imprisonment of three years and 10 months. The Judge also ordered the Applicant to pay $2,819,604, being what she described as "actual moneys received under the charges", to Kind Easy, Ltd., within six weeks in default of which the Applicant was to serve a further term of one and a half years in prison. She then made a criminal bankruptcy order under section 84A(1) of the Criminal Procedure Ordinance, Cap.221, specified the amounts of loss and the persons appearing to have suffered those losses together with the earliest date upon which the earliest offence was committed, and ordered that the bankruptcy order should lapse upon full restitution.

3. It would be convenient first to deal with the order for restitution to Kind Easy in the sum of $2,819,604 and the further sentence of one and a half years imprisonment in default. The Reasons for Sentence do not disclose the authority under which the Judge purported to act. No question of compensation under section 73 of the Criminal Procedure Ordinance, Cap.221, arises. Section 30 of the Theft Ordinance, Cap.210, provides for restitution. Subsection (1)(a) of that section provides for an order for the return of the stolen goods. Although section 8(2) of the same Ordinance defines "goods" as including money, subsection (1)(a) can have no application since the order must be for the return of the actual goods stolen, in this case the cloth, and not the proceeds of sale. Subsection (3) of section 30 does enable an order to be made for the payment of the proceeds of sale but only upon the application of the person entitled to the restoration of the stolen goods. Subsections (1)(b) and (1)(c) also contain provisions where such an order can be made only upon the application of a person so entitled. In the present case no such application was ever made. In the circumstances the Judge below cannot have acted, or acted properly, under section 30.

4. Section 84 of the Criminal Procedure Ordinance, Cap.221, provides in part,

"..... where any person is convicted of an indictable offence, any property found in his possession, or in the possession of any other person for him, may be ordered by the court ..... to be delivered to the person who appears to the court ..... to be entitled thereto."

Again, section 2 defines "property" as including money. The section is therefore wide enough to enable the Court to make an order of restitution in terms of money. Clearly, however, the order must be restricted to money in the possession of the convicted person or of any other person on his behalf.

5. In her Reasons for Sentence the Judge below recorded that the Applicant had admitted in evidence that from the proceeds of sale he had withdrawn $1,400,000, had placed it on deposit and had never used it. The Applicant also is said to own a flat subject to a charge but no documents were produced. The invoice value of the cloth was $3,480,480 but the amount achieved by the Applicant on resale was $2,819,604 the amount the subject of the restitution order. The Judge said,

"Where has all the money gone? I suspect the defendant has salted this money somewhere and stubbornly wishes to hang on to it."

The Judge may well suspect, but that is not a sufficient basis for the order she made. In our view the only amount shown to have been in the possession of the Applicant or by the bank on his behalf was $1,400,000 and it is to that amount that the order should have been restricted if an order was to be made at all.

6. The Reasons for Sentence also give no authority for the imposition of a further sentence of imprisonment in default of compliance with the order for restitution. A Magistrate's Court arguably has a limited power to do so under section 68 of the Magistrates Ordinance, Cap.227, but the District Court does not. Mr. Saw, who appeared for the Crown on the question of sentence but not in the Court below or upon the application for leave to appeal against conviction has, with his customary fairness, submitted that the sentence of additional imprisonment in default of restitution should be set aside and he cites R. v. Tang Wan Yau (Unreported, 1994 No. 554) as authority. He is clearly right and the order setting it aside must follow.

7. Section 84(B)(a) of the Criminal Procedure Ordinance, Cap.221, provides that

"No appeal shall lie against the making of a criminal bankruptcy order."

Mr. Saw has, again very fairly, pointed out that where an order for compensation has been made under section 73 of the Ordinance, section 84A(1)(b) expressly prohibits the making of a criminal bankruptcy order. The order in question, however, was not a compensation order and section 84A(1)(b) has no application. Mr. Saw has also invited us, in effect, to leave the relevant parties to their civil remedies. In the face of section 84B(1), however, we are unable to rescind the criminal bankruptcy order. That being so, however, it would seem to be unfair to leave any order for restitution in place while the criminal bankruptcy order remains, for they are orders relating, almost to the whole extent, to the same liability. In the circumstances there will be no order for restitution.

8. The Judge below described the Applicant as being the manager of Quick Fast Textiles, Ltd. He was not and there was no evidence that he was. She described him as being in a position of trust, presumably in relation to that company but there was no evidence that he was. He was manager of the related company, Quick Fast, Ltd. If he was in a position of trust to anyone at all, it was to Ms. Li Shuk Ying but she suffered no personal damage. On the other hand, the manner in which the offences were committed were deliberate and planned. No restitution has been made and there is nothing that can be said in mitigation. It is pointed out that the Applicant is clearly suffering from mental difficulties but we do not in the circumstances of this case consider that that assists. In the circumstances the sentences of imprisonment imposed were not manifestly excessive or passed upon a wrong principle.

9. The application for leave to appeal against sentence succeeds to the extent that the order for restitution and the sentence of imprisonment in default are rescinded and treating the application as the appeal itself we so order. The application for leave to appeal against the sentences of imprisonment for the substantive offences and the criminal bankruptcy order are refused. The result is that the concurrent terms of imprisonment of three years ten months stand and likewise the criminal bankruptcy order.