The Queen v. Hannelore Christina Schwicker

CACC000158/1988

IN THE COURT OF APPEAL

Criminal Appeal

No. 158 of 1988

BETWEEN

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Coram: Cons, V.-P., Clough and Power, JJ.A.

Date of hearing: 3rd June, 1988.

Date of judgment: 3rd June, 1988.

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J U D G M E N T

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Clough, J.A. (delivering the Judgment of the court):

1. The applicant who was convicted on her own plea on three charges of theft and one charge of furnishing false information contrary to section 19 of the Theft Ordinance (Cap. 210), appeals against the sentence passed on her by his Honour Judge Baily in the District Court. The judge sentenced her to 15 months, 1 month and 2 months' imprisonment respectively on each of the theft charges and to 12 months' imprisonment on the false information charge.

2. The applicant had pleaded not guilty to another charge of theft at the same trial. The Crown thereupon entered a nolle prosequi in respect of that charge (which I will refer to as the 4th charge").

3. The applicant was engaged in the jewellery trade through a limited company owned by her. She was introduced by a man called Leader to the lady who was the Chairman of Denis Hazell & Co. Ltd. (whom I will refer to as "D.H."). Thereafter, pursuant to an arrangement between the applicant and D.H. the applicant was from time to time entrusted by D.H. with items of jewellery to be sold by the applicant in Europe on the basis that the profits were to be shared in accordance with the terms of the arrangement.

4. The charges to which the applicant pleaded guilty arose out of her having pawned items of jewellery of D.H. in Hong Kong and given false invoices to D.H. purporting to show that she had sold various items of such jewellery.

5. The first charge related to 88 items of jewellery valued at $504,025 which the applicant pawned on the 6th March 1987 for $250,000. The second charge was concerned jewellery worth $17,950 which she pawned on the 3rd April 1987 for $10,000. The third charge concerned five items of jewellery worth $82,550 which she pawned on the 11th April 1987 for $25,000.

6. Altogether the three theft charges to which the applicant pleaded guilty involved 98 items of jewellery worth an aggregate of $604,525 which were pawned for a total of $285,000.

7. The fifth charge related to the dishonest production by the applicant to D.H. on the 16th April 1987 of 13 fulse invoices for the purpose of establishing that various items of jewellery had been sold by the applicant. "

8. It appears that shortly before sentence was passed D.H. came to terms with the pawnbroker regarding the items of jewellery which had been pawned to him by the applicant. These items, which included the 98 items mentioned above as the subject of the three charges of theft to which the applicant pleaded guilty and 17 items mentioned in the fourth charge which was dropped, had been seized by the police. D.H. agreed to pay the pawnbroker's solicitors half the amount paid on the pawning of all the 115 items of jewellery as the price for pawnbroker's agreement that the jewellery he released to D.H.

9. The effect of this agreement was that D.H. paid $142,500 for the release of the 98 items of jewellery comprised in the three charges of theft with which the judge was concerned and the pawnbroker bore the loss of an equivalent sum. During the currency of the pawning the pawnbroker had received about $40,000 interest which was paid by the applicant with money obtained from Leader. The interest was clearly paid to prevent the jewellery becoming the property of the pawnbroker after 4 lunar months pursuant to section 17 of the Pawnbrokers Ordinance (Cap. 166).

10. Civil proceedings are pending between D.H. and the applicant as a result of her defalcations. D.H. is claiming $2.2 million.

11. An agreed Summary of Facts was before the judge at the time he passed sentence. This document made reference to various cautioned statements made by the applicant to the police in which she indicated that at the time of the relevant pawnings the applicant believed she had sources of money available to her, which she hoped to call upon in order to redeem the goods. It now seems that those sources were Mr. Leader, not her own assets. However it was stated in the summary that the applicant accepted that she realised that there was a risk of the non-availability of the required moneys.

12. It was this admission and the consequential application of, section 7(2) of the Theft Ordinance which stood in the way of the applicant being able to contend successfully that at the time of the relevant pawnings she was not to be regarded as having the intention of permanently depriving D.H. of the pawned items of jewellery.

13. After hearing mitigation by counsel for the applicant, Mr. Loughran, who appears today in this court, the judge took. the trouble to ask counsel for the Crown for assistance in the form of sentencing decisions of this court in similar cases and adjourned the proceedings until the next day when counsel for the Crown cited Attorney General v. Ngan Suen-kee⁽¹⁾, Attorney General v. Lam Tai Kuen⁽²⁾ and The Queen v. Cheung, Hung⁽³⁾.

14. In his Reasons for Sentence the judge referred to the pending civil proceedings between D.H. and the applicant but pointed out that it was not clear that the, applicant was in a position to satisfy any judgment. He accepted the point made by Mr. Loughran that the applicant had some intention of ultimately redeeming the jewellery from the pawnbroker but without any clear knowledge of where the money was to come from.

15. After referring to the applicant's background as that of a woman aged 47 who was divorced without any family he said she faced problems due to her inability to run her jewellery business and her personal life properly, and this had resulted in her resorting to the dishonest pawnings and use of false invoices which were the subject of the relevant charges.

16. He went on to indicate that he took the view that the charges related to serious offences involving dishonesty by the applicant who had been in a position of trust. He took into consideration that she was a person of good character who had pleaded guilty and was almost certain never to commit such offences again, but he nevertheless concluded that the charges merited an immediate custodial sentence and expressed himself to be guided by the cases cited to him in imposing the sentences that are now the subject of this application.

17. For the applicant Mr. Loughran contends that the sentences imposed by the judge were wrong in principle and/or, manifestly excessive. The proposed grounds of appeal rely on the clear record of the applicant and her plea of guilty and go on to contend that the judge erred by failing to give any or proper weight to a number of matters.

18. The first matter concerns redemption of the-pawned items. It is contended that weight Should have been given to the fact that the applicant always intended to redeem the pawned items and repay D.H., that the applicant had due to her previous conduct an expectation that money would be available from Leader and that the risk of non-redemption may well have been small. It was emphasised today that Leader had always helped the applicant before with substantial payments for her business liabilities and rent. She had come to rely on him. It was again contended that the degree of risk of failure to redeem was slight in those circumstances.

19. This does not seem to us to be a persuasive point. As the judge pointed out all the offences involved dishonesty. The intention of the legislature is that dishonest pawning of another person's property without that person's authority and without the certainty of the one who is doing the pawning of his ability to redeem the property pawned is to amount to the offence of theft.

20. In the present case the property has not been redeemed and the owner, D.H. and the pawnbroker are each out of pocket to the extent of $142,500. Moreover it is quite clear that the applicant was not relying on her own financial means regarding redemption but she was really only hoping that Leader would meet her liability.

21. Then it is sought to fault the judge for not giving weight to the fact that the applicant was in effect buying time" in an attempt to deal with urgent financial problems as opposed to positive enrichment at the expense of D.H. But it is a common experience with this type of offence that the offender is frequently driven by some financial pressure and not by greed or desire for self-enrichment. An obvious example is the compulsive gambler who is in the hands of loan sharks or the unsuccessful businessman. Such individuals are to be deterred from seeking to solve their financial problems by methods of dishonesty.

22. It is contended that D.H. "probably may" suffer no loss arising out of the applicant's conduct because Leader has paid it $1 million as compensation. It appears from the judge's notes that the Crown did not accent such a payment was being made to diminish the applicant's responsibility. The judge can hardly be faulted for not making a reduction in sentence on the basis of such vague and unsubstantiated allegations.'' The payment of $1 million by Leader to D.H. is again relied upon before this court. It is said by Mr. Loughran that the $1 million that was paid by him has been paid inter alia in respect of the jewellery that was pawned by the applicant. At the lowest, it is said, the $1 million will enure for the the benefit of D.H.. However the position remains obscure as to the future application of this sum and no evidence was given below or in this court by Leader himself.

23. Lastly it is contended that D.H. may suffer no loss arising out of the applicant's conduct because she is likely to be given leave under order 13 rule 9 to defend the whole of D.H.'s claim against her on the basis that she has an arguable deference. No leave has yet been granted because the question of imposing conditions for that leave is under consideration by the Master. It seems probable that leave in some form will be granted. This seems a very strange ground in the light of the fact that the applicant has actually pleaded guilty to stealing the property of D.H.. Be that as it may, the prospective outcome of D.H.'s action must be a matter upon which no informed conclusion can he reached on the material before this court. It seems also that one of the main grounds of deference is that the liability to is that of the applicant's company and not the applicant herself.

24. Furthermore Mr. Loughran accepts that the only basis upon which D.H.'s action could fail in respect of the pawned items can be because the $1 million which was paid by Mr. Leader has discharged the applicants liability. As already indicated the application of that payment remains obscure.

25. In our judgment the judge was clearly right in his approach when he sentenced the applicant to an effective term of 15 months' imprisonment in respect of serious offences of dishonesty involving a sizeable sum of money committed by a person who was in a position of trust.

26. The gravity of the offences was not materially diminished by the circumstances in which they were committed. An immediate custodial sentence was called for and in our judgment, after making due allowance for the hitherto good character of the applicant and her plea of guilty the sentence of 15 months' imprisonment was appropriate. It has been stressed by Mr. Loughran on the applicant's behalf that she is under considerable hardship in her present conditions of custody. She has the sympathy of the court in this respect, but regrettably the hardship is the result of her offence. The application is accordingly refused.

(1) Review No. 2 of 1987

(2) Review No. 16 of 1986

(3) Cr. App. No. 986 of 1982

Representation:

Paul Loughran (D.L.A.) for Applicant.

J.R. Sulan (Crown Prosecutor) for Respondent.