HKSAR v. CHENG WAI CHUN

HCMA900/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 900 OF 2003

(ON APPEAL FROM WSCC 1191 OF 2003)

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JUDGMENT

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1. On 28 April 2003 the appellant pleaded guilty at Western Magistracy to a charge of theft and he was sentenced to a term of 4 months' imprisonment. He appealed against that sentence and on 29 January I allowed the appeal to the extent that I ordered that the sentence of 4 months' imprisonment be suspended for a period of two years from 29 January. My reasons follow.

2. The magistrate, in his 'Reasons for Sentence' has helpfully set out the facts of the offence as well as his reasoning for the sentence which he imposed. What he said was (inter alia) this :

" The defendant appeared before me at Western Magistracy on 28th August 2003. He faced 1 charge of theft of HK$4,700.- on 20th August 2003. The defendant pleaded guilty to the charge and after hearing mitigation I sentenced the defendant to a term of 4 months imprisonment. ...

The admitted facts revealed that the victim of the theft ('PW1') had withdrawn HK$4,700.- from a Bank of China Automatic Teller Machine on 20th August 2003 but had forgotten to take away the money. By the time she realized her mistake she had seen the defendant taking away the money. Ignoring PW1's shouts for help the defendant had then fled with the money dropping it as he ran only to be intercepted by 2 police officers ('PW2' and 'PW3'). Under caution the defendant admitted the offence saying he had committed it out of momentary greed.

The defendant admitted 1 previous conviction for theft in 2002.

In mitigation I was told that the defendant had himself been queuing behind the lady victim (PW1) to withdraw money from the ATM machine and had succumbed to temptation and greed when the money was collected by her.

I was given full details of the defendant's working history and 5 reference letters were provided namely 2 from the defendant's school St. Peter's Secondary School in Aberdeen, 2 from an affiliated church (St. Peter's Church) and 1 from the defendant's previous employer. I was asked to consider either a heavy fine, community service or a suspended prison term.

In sentencing the defendant I noted that I had dealt with him in September 2002 for the earlier theft that he had committed and I perused his previous file. For the purposes of the appeal I marked as 'A' the admitted facts relating to that previous theft. This had been committed whilst the defendant was visiting domestic premises with a property agent. He had stolen a Rolex watch which he had then pawned for HK$4,800.- On this occasion I adopted a rehabilitatory approach in sentencing imposing a community service order and compensation order in lieu of a prison term. Disappointedly he had reoffended within a short period of time.

While I accepted that the theft that the defendant had committed on this occasion was opportunistic in nature I considered that a prison term was appropriate given the defendant's recommission of an offence of dishonesty so soon after the imposition of the community service order demonstrating the ineffectiveness of the sentencing approach that I had adopted in 2002.

I took as my starting point 6 months imprisonment which I reduced for the defendant's plea to 4 months imprisonment. There was nothing in the defendant's circumstances which enabled me properly to suspend that term. I so sentenced."

3. The admitted facts of the previous offence to which the magistrate made reference were these :

" PW1 resides at the subject address and he had assigned PW2 as agent for selling of the premises.

2. On the material day, PW2 led defendant for a flat visit at PW1's premises. PW1 found a 'Rolex' watch (exhibit 1) missing from the bedside table after PW2 and defendant left.

3. On the night of the same day, defendant pawned the subject watch at 'Yee Fat' Pawnshop at No. 375-379 Lockhart Road Wanchai for HK$4,800. PW3 handled the transaction and recorded the personal particulars of defendant on the register.

4. Defendant was arrested on 2002-8-23 at Aberdeen Police Station by PW4. Under caution, defendant admitted stealing and pawning of the watch. He had thrown away the pawnshop receipt."

4. The perfected grounds of appeal settled by Ms Catrina Lam who appears before me on this appeal led by Mr Alan Hoo, SC, read as follows :

"	1.	The sentence was wrong in principle in that the learned Magistrate had placed improper and/or undue weight in respect of the Appellant's previous offence, the related facts therein and the approach adopted by the said learned Magistrate on the previous occasion.
	2.	The Appellant was unfairly prejudiced as the learned Magistrate consulted the court file in respect of the Appellant's previous offence in private and the same was not made available to the Appellant.
	3.	In all the circumstances of the present case including the nature of the offence and the background of the Appellant:-
		(a) A sentence of probation should have been considered by the learned Magistrate; and
		(b) There was a basis to suspend the sentence."

5. In his written submissions in support of those grounds of appeal Mr Hoo says, inter alia, this :

"Ground 1

1.	The learned Magistrate had placed undue weight in respect of the Appellant's previous offence, the related facts therein and the particular sentencing approach adopted by the said learned Magistrate on the previous occasion:-
	(a)	The learned Magistrate had previously dealt with the Appellant in September 2002 for an earlier offence he had committed;
	(b)	The learned Magistrate consulted the court file in relation to the previous offence in private and made use of the materials contained therein in reaching his decision to sentence the Appellant for 4 months imprisonment, namely :
		(i)	the fact that the earlier offence also related to theft;
		(ii)	the admitted facts relating to the previous offence;
		(iii)	the fact that the learned Magistrate had adopted a rehabilitory approach in sentencing the Appellant on the previous occasion.
	(c)	After considering the above factors, the learned Magistrate then [reached his conclusion].
2.	It is respectfully submitted that the learned Magistrate erred in placing too much emphasis on the opportunity given to the Appellant in the previous occasion rather than dealing with the Appellant in the context of the present offence. The immediate sentence of imprisonment was given not for the circumstances of the present offence but rather as punishment for the missed opportunity given in respect of the first offence.

Ground 2

3.	It is trite law that 'justice should not only be done but should manifestly and undoubtedly be seen to be done'. The test is whether there was an appearance of injustice, not whether there was actual injustice.

4.	In the present case :-
	(a)	The learned Magistrate retired into chambers for about 7 minutes and apparently consulted the court file in respect of the Appellant's previous offence in private;
	(b)	The court file was not made available to the Appellant or his legal representatives;
	(c)	Nothing was said by the learned Magistrate as to the contents of the court file or the purpose for which it was consulted;
	(d)	As such, the Appellant and his legal representatives did not and could not have known what was contained in the court file;
	(e)	The Appellant (and his legal representatives) had no knowledge until 18 September 2003 when the Reasons for Sentence was provided by the learned Magistrate that he had made use of the materials in the court file in reaching his decision to sentence the Appellant to 4 months imprisonment (including, inter alia, the facts of the previous offence and the sentencing approach adopted by the learned Magistrate on the previous occasion);
	(f)	In the circumstances, the Appellant was unfairly prejudiced - had he and his legal representatives known that the contents of the court file (and which part(s) thereof) were operative in the mind of the learned Magistrate at the time, the Appellant and his legal representatives would have addressed the Court in relation to those issues.

Ground 3

5.	The circumstances of the present offence in conjunction with the personal background of the Appellant do not prescribe an immediate custodial sentence to be the only option in dealing with the Appellant, rather a rehabilitative approach can still be considered, particularly when more is known about the psychological background of the Appellant. This is especially so when both transgressions of the law were opportunistic transgressions enhanced by an apparent impulsive disorder.
6.	It is respectfully submitted that an alternative sentence should be considered including a probation order or a suspended sentence. If necessary, background reports should be ordered to consider whether probation or other guidance is appropriate for the Appellant.

Additional Evidence

7.	It is respectfully submitted that the Psychological Report prepared by Professor Peter W.H. Lee, Consultant Clinical Psychologist at the Queen Mary Hospital, should be received by the Court :-
	(a)	The Court should have a more complete picture of the Appellant's background especially where it involves disorders which may have caused or contributed to the offence;
	(b)	The Suitability Report for Community Service Order in respect of the previous offence referred to the Appellant suffering from 'anxious mood and insomnia';
	(c)	The Psychological Report now demonstrates that the same condition prevailed in respect of the present offence;
	(d)	Such evidence was not available before the learned Magistrate as there was no knowledge as to how the Appellant's said conditions impacted on the offence until he was recently examined by Professor Lee. Since then, the Appellant has commenced treatment with a medical doctor recommended by Professor Lee."

6. Let me say straight away that there is nothing whatsoever in the first two grounds of appeal. Given the information before (and properly before) the magistrate the sentence of immediate imprisonment was not wrong in principle, and the appellant was in no way whatsoever prejudiced by the magistrate considering the facts of the previous offence, the mitigation put forward in respect of it and his reasons for sentencing the appellant then as he did. Quite apart from any other consideration the solicitors acting for the appellant in the 2003 proceedings also acted for him in the 2002 proceedings.

7. Nor is there any thing of substance in the third ground of appeal given the information which was before the magistrate at the time of sentence. Plainly a probation order would have been wholly inappropriate and whilst there was strong mitigation before him it cannot, in my judgment, be said that such (impressive as it was) provided a basis for (or amounted to exceptional circumstances justifying) the suspension of the prison sentence.

8. I say 'given the information which was before the magistrate at the time of sentence' because on 29 January additional and expert evidence not made available to the magistrate was presented to, and considered by, me.

9. Had that evidence been before the magistrate I daresay that he might have taken a different view of the question of whether the sentence might properly be suspended. Certainly in my judgment that additional and expert evidence (when considered with all of the mitigation which was before the magistrate and which was apparently accepted by him) does provide the exceptional circumstances justifying the suspension of the prison sentence.

10. Before coming to the nature of that additional evidence I will just say that in an ideal world it should have been placed before the magistrate but it was not because it was not then available, and it was not then available because those representing the appellant before the magistrate were not made aware of (what I shall loosely call) the personality defects of the appellant. Those only became apparent after sentence and after more careful study of the mitigation material provided by those who knew the appellant well. In this context I was told and I accepted (perhaps the more so given the additional evidence) that the appellant was most anxious to have his case disposed of without delay.

11. The additional evidence (which I received in accordance with section 118(b) of the Magistrates Ordinance and without objection from Ms Shine who appeared for the respondent) was in the form of a psychological report dated 19 January from Professor Peter Lee and a letter dated 27 January from a clinical psychologist Dr Michael Hing Pui Tsang.

12. I see no need to refer in detail to Professor Lee's helpful and lengthy report beyond saying that he (the professor) is of the view that the appellant is suffering from a form of adjustment disorder with chronic insomnia, anxiety and depressive mood of fluctuating nature, and that he relied on hypnotic medications to relieve that insomnia.

13. Professor Lee also says this in his report :

" A punitive sentence on Mr. Cheng would likely serve to demolish his last remaining fickle self esteem and self respect. He would lose his job. He is likely to be deserted by his girlfriend and further rejected by his parents. His psychological and emotional difficulties would further intensify to the extent that his chances of developing more severe psychiatric and self destructive tendencies would intensify. His still fervent motivation to prove himself as someone worthy would be severely compromised.

Should Mr. Cheng be given the chance, I feel that he stands a very good chance of benefiting from a course of at least 15 sessions of psychotherapy to help him gain better insight into his emotional hangup and also to embark on more effective and fruitful pursuits to rebuild his young and still promising life. Mr. Cheng himself has volunteered to me that he would indeed be fully compliant and motivated to seek for such professional help. I understand that Mr. Cheng was already in contact with a mental health professional in private practice and has secured an initial appointment to seek treatment."

14. Dr Hing Pui Tsang says that the appellant has started receiving treatment and he is scheduled to continue with that treatment early next month.

15. It is, I think, plain from what Professor Lee says that an immediate sentence of imprisonment would do more harm than good.

16. In addition to those matters I was handed a letter during the hearing of this appeal written to me by the field worker of the Community Service Orders Unit who worked with the appellant whilst he was completing his community service. Inter alia what that letter (which was apparently unsolicited) tells me is that the Community Service Order imposed upon the appellant for the 2002 offence had achieved some positive results, particularly in that he was now more diligent in his employment and that he does voluntary charitable work in his spare time. That letter concludes by suggesting that the appellant "still has a bright future; a heart to serve the community and a chance to reform himself".

17. It was for all of these reasons that I allowed this appeal against sentence to the extent to which I did allow it.

18. In the hearing of the appeal I was greatly assisted by counsel both for the appellant and for the respondent who, if I may say so, adopted a wholly realistic and sympathetic view of matters.