HKSAR v. CHOY YAU PUN

HCMA 450/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 450 OF 2002

(ON APPEAL FROM ESCC 886/2002)

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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 is a man aged 24. On 28 March 2002 he appeared before I.S.C. Candy Esq. in the Magistrate's Court at Eastern on a charge of obtaining access to a computer with dishonest intent to cause loss to another, contrary to s. 161(1)(d) of the Crimes Ord., Cap. 200. He pleaded guilty. The Magistrate sent for detention centre, probation and community service reports. On 18 April 2002, after considering such reports and hearing mitigation by counsel on the Appellant's behalf, the Magistrate ordered that the Appellant be detained in a detention centre. The Appellant now appeals against that sentence. His counsel submits that the Magistrate erred in making a detention centre order rather than a community service order.

2. The present offence was committed during the period between 20 August and 10 October 2001. Prior to that the Appellant had been in trouble with the law twice. On 7 July 1997 he was fined for theft. On 18 August 1997 he was put on 12 months' probation for theft.

3. As for the facts of the present case, they are best taken from what the Magistrate put to the Appellant and he admitted. The following appears from the transcript of the proceedings on 28 March 2002:

"COURT :	The owner of this computer sent her computer for servicing to your company. After she received it back, she received a bill from her internet service provider for a sum which she knew she could not have incurred. A check was conducted and it was found out that for the period involved her internet account was used through the telephone line of the company where you worked.
	You were arrested. You later admitted that you had retrieved from the customer's computer the relevant internet information and you had installed that information in your own computer and during that time had used the customer's internet account for yourself. The amount of money incurred by your use was $286.81.
	Are these facts correct?
DEFENDANT:	Facts admitted."

4. The Probation Officer who reported to the Magistrate recommended a community service order. The Commissioner of Correctional Services reported to the Magistrate that the Appellant was suitable for detention in a detention centre and that a place was available for him. The Pre-sentence Assessment Panel Officer whose report was forwarded by the Commissioner to the Magistrate expressed the view that a period of disciplinary training would be beneficial to the Appellant.

5. In deciding whether a community service order is appropriate, two broad questions arise: one pertaining to the circumstances of the offender and the other pertaining to the circumstances of the offence or offences. As to the circumstances of the offender, there is this passage in the judgment of the Court of Appeal (Criminal Division) delivered by McCullough J in R v Brown (1981) 3 Cr. App. R(S)294 at p. 295:

"But this case is tailor-made for a community service order. We have here a first offender - indeed the position would have been the same if he had had what I might call a "light" criminal record; he came from a stable home background with a wife and a young child; he had a good work record; and it now appears that a job is available to him. There is apparently genuine remorse and the risk of re-offending appears slight."

6. Six factors are there identified, and it is of course the combination of all six of those factors which caused the Court of Appeal (Criminal Division) to regard that case as tailor-made for a community service order. As Mayo VP said when delivering the Court of Appeal's judgment in HKSAR v Wong Yiu Kuen [2001] 1 HKC 486 at p. 491H: "All the factors must be satisfied". That is not to say that a community service order can never be made unless precisely those factors are present. For example, it can be the case that a young man cannot rely on having a wife and child or a job being available to him, but can rely just as strongly on his youth and a university place being available to him.

7. Even where a community service order would be appropriate to the circumstance of the offender, there remains the question of whether such an order would be appropriate to the circumstances of the offence. It may be, as Mayo VP pointed out in Wong Yiu Kuen at pp. 491I - 492A, that "while the offender may have been an appropriate candidate for community service, the offence was, on its facts, too serious for this option to have been utilised". For example, as Mayo VP immediately went on to point out at p. 492B, "it is only in the most exceptional cases that anything other than an immediate custodial sentence is appropriate in cases involving an element of corruption".

8. The same thing has been said about offences contrary to the provision against which this Appellant has offended, namely s. 161 of the Crimes Ordinance. In HKSAR v Tam Hei Lun [2000] 3 HKC 745 Rogers VP, delivering the judgment of the Court of Appeal, said at p. 750A that "unless there are most unusual circumstances a non-custodial sentence would be inappropriate for offences against s. 161". There the Court of Appeal upheld a detention centre order against a young man of previous good character who came from a stable home background, had a good work and study record, had shown genuine remorse, was unlikely to re-offend, and was undertaking in his spare time a course of study which any custodial sentence was likely to disrupt. Even in those circumstances, the Court of Appeal refused to substitute a community service order for the detention centre order imposed by the sentencing judge. In refusing to do that, the Court of Appeal was acting on its view of the seriousness of s. 161 offences.

9. Counsel for the Appellant said that community service is an equivalent to imprisonment or at least a very real and effective alternative to imprisonment and is not to be regarded in any way as a soft option or as a let-off. I am prepared to accept that community service is not a soft option or let-off. But there is a very real difference between community service and any form of custodial sentence. As to community service being an alternative to a custodial sentence, there are cases where it is more appropriate than a custodial sentence. But even where the circumstances of the offender make him a viable candidate for a community service order, there must be most unusual circumstances before such an order or any other form of non-custodial sentence can be regarded as an appropriate alternative to a custodial sentence for an offence against s. 161. That is clear from the Court of Appeal's decision in Tam Hei Lun.

10. In the present case, the Appellant had offended before, but not under s. 161 and not very seriously. He lived with a cohabitee and her parents. He has a business of his own, but it is one in connection with which this offence was committed. He appears to the remorseful. And he has in his favour the Probation Officer's recommendation of a community service order. His personal circumstances are not those of a prime candidate for a community service order. Even so, if the Magistrate had said that a community service order is appropriate to the circumstances of the Appellant, I would not have contradicted that.

11. Looking at his Reasons for Sentence, one sees that the Magistrate's refusal to order community service and his decision to order detention instead are based not on his view of the circumstances of this offender but rather on his view of the circumstances of this offence.

12. Counsel for the Appellant urged on his client's behalf and in his favour that he is not a computer hacker. This is not an occasion for me to pronounce on what does or does not amount to hacking. Whether the Appellant's conduct is or is not so described, the fact is that he offended against s. 161 and, what is more, did so in circumstances which betrayed the trust of a customer who had delivered her computer to him for servicing. Where, as in the present case, the function of the proper sentence includes deterring not only conduct contrary to s. 161 in the ordinary way but also deterring betrayal of trust, it is even more difficult than usual to regard a community service order as appropriate.

13. In my judgment, the sentence passed by the Magistrate is proper and should be affirmed. This appeal against sentence is dismissed.