The Queen v. Cheng Lai-kuen

CACC001463/1983

IN THE SUPREME COURT OF HONG KONG

BETWEEN:

Coram: Roberts, C.J.

Date: 23rd December, 1983

___________

JUDGMENT

___________

1. The appellant pleaded guilty before a magistrate to obtaining property amounting to ever $56,000 by deception over a period of four years.

2. In 1974, her husband was sentenced to ten years' imprisonment for drug offences, leaving her with six young children to bring up on her own. She applied for and received public assistance of $600 per month.

3. In 1977, when her youngest child was about 3 and she therefore felt that she could take outside employment, she took a job, without declaring to the Social Welfare Department, that she was earning money.

4. Although persons in receipt of public assistance are required to inform the Social Welfare Department on anything earned by them, she failed to do this during the period from 1977 to 1981. When her husband was released from prison in 1981, she ceased drawing the Public Assistance.

5. In 1983, when her husband left her, she applied again for help and, during the normal enquiries which precede the making of payments, the Social welfare Department discovered that she had been earning money between 1977 and 1981 without disclosing this to the Department. An offence of this kind must be regarded as of a serious nature though fortunately it is not widespread. It should not be thought that it is wrong, in general, to impose a custodial sentence for offences of this kind, but there are special circumstances which, in my view, support the view that a sentence of immediate imprisonment was harsh in this sentence.

6. The defendant was obliged to bring up six young children on her own, her husband having been sent to prison. This she appears to have done very successfully, since the probation officer, who made enquiries into her family background at the request of the magistrate, said that the eldest daughter, on behalf of all the other children, had asked the magistrate to be lenient with their mother and not to send her to prison.

7. She has also managed to keep all the children in school, although the eldest one left, I hope only temporarily, in order to earn money to keep her sisters and brothers while her mother was serving the three weeks' imprisonment which followed her conviction.

8. It is clear that she is a woman who has faced a series of misfortunes during the past ten years; and I can see that the temptation, to continue to draw public assistance, when the amount she was earning from outside employment was very low, must have been considerable.

9. The magistrate himself considered carefully the alternative of a suspended sentence of imprisonment, since he had before him the very helpful report of the probation officer, who had suggested that a non-custodial sentence was suitable for the defendant. She did not think that a probation order was appropriate, since as it was most unlikely that the defendant would get into trouble again.

10. I share her view, and believe that this is the sort of case for which the device of a suspended sentence of imprisonment was designed. I see nothing wrong with the sentence of four months imposed by the magistrate, nor even of that of six months, which was his earlier sentence, for long term deception of this nature. The only way in which I respectfully disagree with him is that I think it is a sentence that should be suspended.

11. In making the order which I am about to do, I take into account the appellant's offer to pay to the Social Welfare Department, by way of restitution, a sum of $10,000 out of money which has been collected to help her children and herself by generous-minded members of the public. I cannot make it a condition of the suspended sentence that I am about to impose that such a payment should be made, but I accept the assurance of her counsel that it will be.

12. I therefore allow the appeal against sentence and vary the sentence of four months' imprisonment imposed by the magistrate, by suspending the sentence of four months' imprisonment for a period of two years.

Representation:

Miss J. Leong (D.L.A.) for Appellant.

Mr. J.S. Conyngham, Senior Crown Counsel, for Respondent.