R. v. WONG CHI TAK

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.523 of 1996

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J U D G M E N T

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1. This is an appeal against sentence. The appellant pleaded guilty before a magistrate to four offences. Three of them were committed within one week, namely between 28th August 1995 and 1st September 1995. The other was committed in December 1994.

2. The facts were that the appellant was the tenant of premises; in relation to the first three charges, in Shek Kip Mei, and in relation to the fourth, in Tai Kok Tsui. He placed advertisements in papers for letting the premises when he was not entitled to do so, and at least in relation to the first three charges when he had already given notice that he was going to part with possession of the premises. He represented to a number of individuals that he was the landlord of the premises. They parted with rental deposits. In the first charge, the sum obtained was $2,400; in the second charge the sum was $2,600; and the third $7,500. In relation to the fourth charge, he obtained the much larger sum of $15,900 - a total obtained by deception, therefore, of $18,400. None of the victims, as far as I know, was able to take up occupation of the premises.

3. The appellant pleaded guilty before the magistrate in April 1996 and reports were called for. The appellant was then aged 34, and he had no previous convictions. It was said in the report that he had run into financial difficulties, and that that led to the offences. He was employed in his own design company earning about $6,000 a month. It was said that he deeply regretted the offences and wanted to make compensation to the victims.

4. The magistrate said that he took a starting point in relation to each of the offences of 15 months' imprisonment, but that in view of the plea, the clear record, and the total period to be spent in prison by the appellant, he sentenced him to three months' imprisonment in relation to Charges 1, 2 and 3, and to six months' imprisonment for the 4th charge, but ordered them to run consecutively making a total of 15 months' imprisonment.

5. It cannot possibly be that the magistrate moved from 15 months' to three because of the mitigating factors. What he evidently did was substantially to reduce the individual sentences, so that the total consecutive term would not be inappropriate. That is not the correct approach to the totality exercise. What the Magistrate should have done was to decide upon an appropriate term for each offence, after taking into account aggravating and mitigating factors, and then to give effect to the totality principle by making sentences run concurrently or consecutively or partly both.

6. Returning however to the effective sentence imposed, it is argued that the magistrate gave insufficient weight to the previous good character of the appellant, and to his offers to pay compensation. In relation to his previous good character, the magistrate's approach is not as clear as might have been. Although he referred as part of a lost of mitigating factors to the appellant's clear record, he did take issue with reports which referred to the appellant as a first offender. He cited the case of Shum Ming [1978] HKLR 41 in support of the proposition that :

"A person who appears before the court for the first time but who appears charged with and subsequently convicted of multiple offences of the same type cannot be regarded as a first offender."

7. Yet, in my judgment, each case must be examined against its own facts, and the fact that the appellant has committed a number of like offences for which he is facing the court's penalty, must not obscure or be thought to obscure the fact that prior to those offences, he had led a significant part of his adult life crime free. It is noteworthy that Shum Ming was a case dealing with a large number of robberies and what is more with defendants, two of whom were aged 21 years, and the third aged 16 years. This appellant was aged 34 years, and until December 1994 had not offended. The magistrate has given the appearance, whether intended or not, that he has not given sufficient credit for the fact that the appellant had a clear record for the first 32 or 33 years of his life.

8. As for compensation, it is not an avenue by which those caught can buy themselves out of the penalty appropriate to the crime. A compensation order is appropriate if the convicted person is in a position to make payment, although the courts may shorten a sentence, if that would aid an appellant to earn the money with which to pay the fine. But in this particular case earning prospect are not demonstrated to be sufficient, and it is to be noted that these particular offences were allegedly committed by the appellant because he was short of money. I am further told by Mr Wong that the appellant would earn income because there are number of potential employers, alternatively that he would borrow money from family and friends. That is too vague a prospect, and also too dangerous a one, to move me to make any compensation order.

9. In my opinion, the overall sentence imposed is in all the circumstances too high. In my judgment, the appropriate sentences for each charge are as follows :

(1) in relation to Charge 1, nine months would have been an appropriate starting point, and given mitigating factors, six months would be the sentence that should have been imposed;

(2) in relation to Charge 2, nine months would be the appropriate starting point, with an effective term of six months;

(3) in relation to Charge 3, nine months would have been an appropriate starting point with a reduction for mitigating factors to six months' imprisonment;

(4) in relation to Charge 4, the appropriate starting point would be 12 months imprisonment with an effective term of nine months, given the mitigating circumstances.

Although the offences were all separate and in principle merit consecutive sentences, the appropriate totality in my judgment is reflected by an effective term of nine months' imprisonment. Accordingly, I allow the appeal and substitute terms on each charge as follows : Charge 1, six months' imprisonment; Charge 2, six months' imprisonment; Charge 3, six months' imprisonment, and Charge 4, nine months' imprisonment; all terms to run concurrently. I allow the appeal to that extent.