HKSAR v. Sathak Abdul Kader Anees Rahman

HCMA 47/2021

[2021] HKCFI 2653

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 47 OF 2021

(ON APPEAL FROM KCCC NO 1676 OF 2020)

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BETWEEN

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Before:  Hon Yau J in Court

Date of Hearing:  21 June 2021

Date of Judgment:  17 September 2021

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J U D G M E N T

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1.The appellant pleaded guilty to 3 counts of theft, contrary to section 9 of the Theft Ordinance, Cap 210 and was sentenced to 12 months imprisonment for each charge. 3 months of the sentences of Charge 2 and Charge 3 are to run consecutively to that of Charge 1, making a total of 18 months imprisonment.

2.The appellant appeals against the sentence. 

Facts Admitted

3.At the material time, the appellant was employed by Color Jewels (“the company”)  as a merchandiser selling gold to mainland China.  He was required to either keep the gold in the company’s safe or send the gold out to the customers.  Upon an audit check in June 2018, the company found that 3 gold bars were not passed to the customers.  The appellant confessed to his employer that he had stolen the gold bars. 

4.The appellant was arrested on 14 June 2018.  Under caution, he admitted that in April, May and June 2018, he had taken the gold bars from the safe of his employer and sold them for $953,000.  He had used all the money for investment and had lost all of them while trading on margin. 

5.The respective value of those gold bars were $330,419, $323,698 and $324,300, making a total value of $978,417. 

Background and Criminal Record

6.The appellant is 49 years old and has a clear record.  He was born on 30 June 1972 in India and moved to Hong Kong in 2003 with his family.  His wife is a house-wife and his 2 daughters are studying in secondary schools.  In 1995, he obtained his Bachelor degree in India.  He worked for the company from 2003 to 2016 and 2017 to 2018.  At the material time, his position in the company was production manager. 

Mitigation

7.It was submitted in mitigation that the appellant had suffered and recovered from chest cancer, but had been suffering from the mental disease of Bipolar Affective Disorder and that the prosecution had delayed in prosecuting the appellant. 

8.The medical reports prepared by Dr Yu confirmed that the appellant had been known to the Kowloon Hospital Psychiatric Clinic since 2012, suffering from Bipolar Affective Disorder.  Dr Yu opined that the prevalence of gambling addiction is usually higher in the group of patients with Bipolar Affective Disorder. However, Dr Yu also opined that there are many reasons for gambling addiction. 

9.The appellant was arrested in June 2018 but was not charged until June 2020.  The prosecution submitted a “Sequence of Event” setting out how the police conducted the investigation and the time taken for obtaining legal advice. 

10.On the day the appellant pleaded guilty, he compensated the company by $250,000 which counsel for the defence described as a significant amount.  The magistrate did not agree.  The appellant eventually made full restitution to the company after the magistrate adjourned the case for 2 weeks for him to do so. 

Grounds of Appeal

11.The grounds of appeal are:

(a)  the magistrate erred in giving no discount for the mental illness of the appellant at the material time;

(b)  the magistrate failed to consider if the combined effect of the delay in prosecution, mental illness and full restitution would justify a suspended sentence of imprisonment;

(c)  the sentence is manifestly excessive. 

Mental Illness as Mitigation

12.The counsel for the appellant, Mr Young, submits that the mental illness of the appellant at the time of the offences should be a factor of mitigation which the magistrate should have taken into account.  He cites the authority of HKSAR v Chiu Peng [2002] 1 HKLRD 185 which held that where an accused was suffering from mental illness which played a part in the commission of the offence, the court could properly allow a discount of sentence to reflect his diminished criminality or culpability. 

13.The Court has no dispute about this principle.  The question is whether the magistrate has really erred as alleged in the appellant’s first ground of appeal.  Mr Young complains that the magistrate adopted an unreasonably high threshold in requiring evidence to prove strict causation between the offences and the mental illness of the appellant. 

14.The Court does not agree with the contention of Mr Young.  In the present case there is in fact no evidence of such causation at all.  As rightly pointed out by the respondent, according to Dr Yu, the mental illness of the appellant was considered remission during the period of the offences.  Although the appellant put forward in mitigation that the mental illness had caused him to gamble uncontrollably, Dr Yu opined that there were many reasons for a gambling addiction.  Moreover, the appellant after being arrested told the police that he had lost all the money in investment and trading on margin, not gambling. The magistrate is therefore perfectly entitled to say that the evidence of Dr Yu, and indeed, other evidence in the case, failed to support the contention of the appellant that his mental conditions had triggered his commission of the offences. 

15.Mr Young also relies on the authority of HKSAR v Yeung Kwun Kuen [2014] 1 HKC 463.  The magistrate distinguished it from the present case:

“13. In HKSAR v Yeung Kwun Kuen [2014] 1 HKC 463, a young bar waiter stole credit cards in circumstance involving breach of trust. With a clear record, suffering from a long term mental health problem and having made full restitution to the victims, the Court of Appeal set aside the imprisonment term and substitute an order of probation. That case is obviously highly unusual, for example, the defendant in that case was only 21 years old and committed the offences followed close upon the heels of a traumatic event in his life, namely, the death of his grandmother with whom he had been particularly close. In the present case, there is no evidence that the defendant was triggered by any unfortunate event in his life that triggered his repeated stealing of gold bars.”

16.Taking into account the evidence of Dr Yu and other evidence in the case, including what the appellant told the police after his arrest, the Court is of the view that the reasoning of the magistrate cannot be faulted. 

17.As regards the appellant having suffered from chest cancer in 1990s the magistrate relied on the case of Yip Kai Foon v HKSAR [2000] 3 HKCFAR 31 which ruled that the ill health of an accused would seldom be a basis for reducing the sentence for crimes of gravity.  Such illness is obviously of no assistance to the appellant as he had recovered from it long time ago. 

18.The first ground of appeal fails. 

Suspension of Sentence

19.Mr Young contends that the combined effect of the delay in prosecution, mental illness of the appellant and full restitution to the company would justify a suspended sentence of imprisonment.  Mr Young complains that the magistrate arrived at the sentence on the basis that full restitution was not sufficient to justify a suspension of sentence, without giving proper weight to the mitigating factors. 

20.As pointed out above the mental illness of the appellant is not a valid ground of mitigation.  It follows that apart from the guilty plea, the other grounds of mitigation are the full restitution and delay in prosecution.  As rightly pointed out by the magistrate, full restitution is only an important mitigating factor but not sufficient to justify for a suspension of sentence.  He relied on HKSAR v Chan Oi Ki, CACC 375/2016 which said:

“The present case did not involve a small amount. Nor is full restitution an exceptional circumstance meriting suspension of a sentence of imprisonment in a serious case. Were it otherwise, a defendant with means, or access to other funds from, for example, relatives or friends, would be able to buy his or her way out of imprisonment.”

21.Mr Young argues that there are decided cases of serious breach of trust showing that full restitution and undue lengthy delay in prosecution or mental illness are sufficiently exceptional to justify a suspended sentence of imprisonment.  He relies on HKSAR v Tong Yee Chun [2015] 5 HKLRD 480 and Secretary for Justice v Hui Siu Man [1999] 2 HKLRD 236.  The magistrate dealt with Tong Yee Chun in his Reasons for Sentence:

“12. I do not accept that the present case justifies for a suspension of imprisonment or to impose a probation order. The cases submitted by counsel for the defendant were involving highly unusual circumstance. In HKSAR v Tong Yee Chun, [2015] 5 HKLRD 480, a solicitor, in breach of trust, defrauded a victim who had no or little knowledge about the law. That defendant, who was no longer qualified to practice, was found justified for an exceptional lenient sentence and was imposed a suspended sentence. However, the amount involved in that case was incomparable to the amount involved in the present case.”

22.The magistrate is correct in saying that Tong Yee Chun is not comparable with the present case in terms of amount of money being involved.  In that case the amount was only $12,600 while the amount in the present case is as much as $978,417.  The reasoning of the magistrate in this regard cannot be faulted. 

23.In the case of Hui Siu Man, the defendant, an employee of a bank, stole a total of about $630,000 from the account of a customer of the bank on 6 occasions by means of forged bills of lading, invoices and authorisation letters which stated that goods of such value had been sold and delivered to the customer.  The defendant was sentenced to a total of 21 months imprisonment suspended for 3 years.  The application for review of the sentence by the prosecution was refused by the Court of Appeal. 

24.As rightly pointed out by the respondent, it is a decision which predates Cheung Mee Kiu [2006] 4 HKLRD 776 and with different considerations.  In Hui Siu Man case the court took into account the delay in prosecution and the rehabilitation of the defendant during the delay in obtaining steady employment to repay a very large amount of money which he had borrowed to make restitution. 

25.Hui Siu Man is different from the present case in a number of aspects.  Firstly, the defendant in that case made full restitution even before the case was reported to the police by borrowing a large amount of money from friends and relatives.  The element of rehabilitation is also absent in the present case. 

26.The circumstances of delay in prosecution are matters to be considered in determining whether it would constitute a valid ground of mitigation.  The delay in Hui Siu Man was slightly more than a year while that in the present case was about 2 years.  In the former the prosecution gave a very brief explanation that the bank had not been cooperative in providing the necessary documents and statements to the police, giving the reason that some of the staff members concerned were working in China.  It transpired that the defendant was only charged about 4 months after such materials had been given to the police. 

27.In the present case the police encountered problems of similar nature.  The police made continuous efforts to obtain statements from the various witnesses and completed the process of obtaining legal advice and charging the appellant about a month after the last witness statement had been obtained.  The delay was in effect through no fault of the prosecution. 

28.The sentencing judge in Hui Siu Man made it clear that another reason for him to regard the delay as a ground of mitigation was because the bank had been reluctant to report the case to the police, leading the defendant to think that the matter would come to an end after his dismissal.  Such a factor is also absent in the present case. 

29.Although, as pointed out above, the delay in prosecution in the present case was through no fault of the prosecution, the magistrate considered that 2 years had been too long and accepted it as a ground of mitigation, but after taking this factor and other mitigating circumstances into consideration, came to the conclusion that a probation order or a suspension of the imprisonment was not appropriate.  He gave a discount of 4 months for this reason and for the full restitution for each of the charges.  It is the view of the Court that the approach of the magistrate is in fact on the lenient side and cannot be faulted. 

30.The second ground of appeal fails. 

Sentence Manifestly Excessive

31.Mr Young submits that the overall sentence of 18 months imprisonment is manifestly excessive.  He cites the case of HKSAR v Leung Shuk Man [2002] 3 HKC 424 and HKSAR v Chan Yiu Fai and Others CACC 375/2013 to support his contention that in a breach of trust case the discount in sentence for full restitution alone can be as much as 50% while in the present case the overall discount is only about 45% in reducing the overall sentence of 33 months imprisonment to 18 months imprisonment. 

32.Mr Young relies on the case of Secretary for Justice v Lin Min Ying [2002] 3 HKC 415 to make his point that restitution is still a material factor in mitigation even if it is paid much later in time.  He also brings to the attention of the Court the sentences imposed in a number of cases of breach of trust with full restitution. 

33.The respondent also cites a number of cases to illustrate the percentages of discount given for full restitution, for delay in prosecution and for restitution and delay in prosecution combined. 

34.The cases cited by the parties did not lay down any sentencing guidelines, but are, of course, useful reference for the Court.  It must, however, be reiterated, as the courts have often done, that sentencing is not a mathematical exercise, but an art in accordance with the principles of the law.  In AG v Wong Kwok Wai [1991] 2 HKLR 384, which is cited by the respondent, the Court of Appeal expressly discouraged mathematical calculations of discounts in sentences.  The reason is obvious.  Each case must depend entirely on its own facts and the court in exercise of its discretion has to consider the whole circumstances to arrive at a just and appropriate sentence. 

35.Restitution and delay in prosecution as factors for mitigation have already been canvassed in detail in the earlier part of this judgment.  The magistrate in arriving at the sentences for each of the charges and the overall sentence for these charges has taken into account all the mitigating factors and the totality principle. The sentences are in line with the sentencing tariffs in Cheung Mee Kiu and are also consistent with the sentences in other relevant authorities.  The Court is of the view that his conclusion cannot be faulted.  His individual sentence for each charge and the overall sentence are neither manifestly excessive nor wrong in principle. 

36.The third ground of appeal fails. 

Conclusion

37.The appeal against sentence of the appellant is dismissed.

Mr Jerome Ching SPP (Ag.)  of the Department of Justice for the Respondent

Mr Simon N M Young instructed by Messrs Chaudhry Solicitors for the Appellant