HKSAR v. Leung Shuk Man

CACC000230/2001

CACC 230/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 230 OF 2001

(ON APPEAL FROM DCCC 375 OF 2001)

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Coram: Hon Stuart-Moore Ag CJHC, Woo JA and Stock JA

Date of Hearing: 7 March 2002

Date of Judgment: 7 March 2002

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

Introduction

1.On 29 May 2001, the Appellant, aged twenty-six, pleaded guilty in the District Court before Judge Sweeney to nine charges of theft involving a total of $430,000 and to a tenth charge of attempting to steal $2 million. She was sentenced to a total of twenty-four months' imprisonment. On 6 December 2001, Woo JA granted her leave to appeal against her sentence.

Prosecution's case

2.The facts were very straightforward. The Appellant was employed in September 1999 by Levett & Bailey, a firm of quantity surveyors, to work as a personal secretary to Mr Lai, one of the directors. However, within two months, she forged Mr Lai's signature and wrote herself a cheque in the sum of $15,000. When this went undetected, she continued to write cheques to herself in varying sums which depended on how much she could obtain within the overdraft limit on Mr Lai's account. By 9 May 2000, within six months of the start of this course of dishonesty, the Appellant was, as the judge rightly described her, "so overcome by greed" that she forged Mr Lai's signature on a cheque to herself in the sum of $2 million. It was this offence which alerted the bank's suspicions. Mr Lai was informed and the ten offences were exposed.

3.In subsequent interviews with the police, the Appellant admitted the offences stating that all except $50,000 had been spent on clothing, watches and handbags which were in her home. In due course, she handed the unspent stolen money to the police and they also seized the goods which the Appellant had bought with the remaining money.

Mitigation and sentencing

4.The situation confronting the judge, by the time the matter came before him for sentence, was described by him in the following way:

"The defendant has pleaded guilty to all 10 charges, although it is hard to see how she could possibly have defended any of them, given that all of the said sums of money were paid into her own bank account. She has now, via her family members, repaid back all of the $430,000 she actually stole from Mr Lai. In response, he has written a letter to this court praising her as 'a capable, intelligent and hard-working young lady'." (Appeal bundle p. 14)

5.The judge went on to review some of the facts of the case and to summarise the effect of a psychological report about the Appellant when stating that she was the victim of an unhappy childhood who would steal "to gain self-esteem by impressing people" through what she wore. Altogether, the judge had three reports, including one from a probation officer, in front of him and he concluded that:

".... this defendant has been a self-indulgent person motivated by greed. Although her parents divorced some 18 years ago, this defendant has had a comfortable middle-class upbringing and has always managed to obtain comparatively well-paid jobs since leaving school." (Appeal bundle p. 14)

A little later, the judge said:

"There has been a serious breach of trust here and there can be no alternative to an immediate custodial sentence. In the defendant's favour I find that it would not be appropriate to take the last cheque for $2 million into account in sentencing, as there was no real prospect of that cheque being met out of this account ...." (Appeal bundle p. 14)

6.It is very difficult to follow the judge's reasoning in relation to charge 10, but all that we perhaps need to say about this is that the Appellant was given a very generous disposal in regard to it.

7.The judge then sentenced the Appellant to an overall term of two years' imprisonment. He took a starting point of eighteen months on charges 1 and 2, which he reduced to twelve months in each case, to run consecutively. The judge imposed concurrent sentences of twelve months' imprisonment on all the remaining charges.

The application

8.It was submitted in the perfected grounds of appeal, advanced by Mr McGowan on the Appellant's behalf, that the overall length of the term of imprisonment was manifestly excessive because the judge had "failed to consider the quantum based guideline for sentencing in 'breach of trust' cases as modified by Clark and confirmed by Wong Kay-din." He further contended that the judge had failed to take into account the 'totality' principle, the Appellant's clear record and her undisputed remorse.

9.In fact, Mr McGowan, having indicated at the court's instigation that he considered that the Appellant's sentence should have been in the region of eighteen months' imprisonment, was not called upon to argue these points as he indicated in advance that his main point was really confined to a later ground of appeal to which we shall turn in a moment. We can dispose of these initial features of the application immediately as they were misconceived. The judge plainly did take into account totality. The sentence was designed in such a way as to achieve a just overall sentence bearing in mind the multiplicity of the offences. Indeed, it is their multiplicity which renders the Appellant's so-called good character, in the sense that she had no previous convictions, a fairly meaningless label. In any event, the Appellant was given a one-third discount which is normally to be regarded as the high watermark of the discount accorded to a defendant showing remorse by pleading guilty, whether or not a defendant is able to claim previous 'good character' in the sense of 'clear record'. Positive good character may well entitle a defendant to a slightly enhanced discount such as in the example of an offender who has worked without payment for a charitable cause within the community. This Appellant was entitled to no more than a one-third discount for her plea.

10.We can also dispose quickly of the point which was made by Mr McGowan in his perfected grounds of appeal that the judge had failed to consider the court's judgment in Secretary for Justice v Wong Kay-din CAAR 7/1998 (unreported) which adopted what was said in R v Trevor Clark [1998] 2 Cr App R 137. It may be that the judge in the present case made no direct reference to either of these authorities. This is, of course, quite beside the point if the sentence which was ultimately imposed was within the general guideline bracket for the offences unless there were circumstances which justified a sentence which was either higher or lower than would normally be imposed. Here, plainly, the sentence came well within the bracket. The judge had imposed a total sentence of two years' imprisonment which is indicative of a three-year starting point for this series of offences.

11.It was held in Trevor Clark's case, following a review of some of the considerations, emerging from the judgment in R v Barrick [1985] 81 Cr App R 78, which are to be taken into account in determining the proper level of sentence, that:

"In the light of all these considerations, we make the following suggestions. We stress that they are by way of guidelines only and that many factors other than the amount involved may affect sentence. Where the amount is not small, but is less than ￡17,500, terms of imprisonment from the very short up to 21 months will be appropriate; cases involving sums between ￡17,500 and ￡100,000, will merit two to three years; ...."

12.The circumstances of the present case plainly indicate that a sentence, after trial, of three years' imprisonment could not be criticized. It follows that the imposition of a two-year sentence following pleas of guilty was in itself, subject to the remaining ground of appeal, entirely appropriate. (See also HKSAR v Chan Kai-chung CACC 12/2001 (unreported)).

13.However, there is, as Mr McGowan indicated, one other factor which has to be taken into consideration. Even before the Appellant was charged, she repaid the whole of the sum she had stolen as the judge recognized in his sentencing remarks. But despite this, the judge unfortunately, perhaps because of oversight, made no reference to this as a powerful factor in mitigation which justified a reduction in sentence beyond the usual one-third in order to reflect the compensation the Appellant had paid to her victim. If the situation were otherwise, and a specific discount was not given for the payment of compensation or restitution, there would be no advantage to an offender who has repaid some or all of the ill-gotten gains to the victim, over and above the one-third discount the offender could necessarily expect to receive for a timely plea of guilty.

14.There are, of course, no guidelines as to precisely what discount should be given where compensation for a victim's losses has been paid or partially paid. The circumstances of each case will obviously vary. A sensible use of the sentencer's discretion will normally enable the offender to receive an appropriate discount. In a case such as the present one, particularly where full repayment has been made, a significant discount, above and beyond the usual one third for plea, should plainly be given.

15.Bearing in mind all of the circumstances of this case, and importantly the Appellant's payment of compensation at an early stage to her victim, we consider that the overall discount she should have received on the totality of her sentence was in the region of 50%. This, applied to the present case, would reduce by a further six months the sentence the Appellant is serving. The additional six months' reduction from her total sentence is intended to inform the Appellant that the compensation she has paid to her victim has been recognized as an important mitigating factor.

16.Mr Cheung, in a most responsible way, fairly conceded in his written argument on the Respondent's behalf, which was supplied well in advance of this hearing, that the Appellant should, in his submission, have received a specific discount for the compensation she had paid and he did not seek to suggest that the present sentence could be supported.

Conclusion

17.With these considerations in mind, we shall reduce the overall sentence which the Appellant is serving to a total of eighteen months' imprisonment. In order to achieve this result in the simplest way, we shall interfere with the sentences imposed by the judge only in one respect. This is in relation to the sentence imposed on charge 2 which we shall order should run consecutively to the extent of six months only to the twelve months on charge 1. The remaining six months on charge 2 will run concurrently. We make, of course, no variation of any of the other orders made by the judge. To the extent, therefore, that the total sentence to be served by the Appellant is reduced by six months, this appeal succeeds.

18.We would like to express our gratitude to both counsel for the great assistance they have given.

Representation:

Mr Cheung Wai-sun, DPGC, of the Department of Justice, for the Respondent.

Mr H.M. McGowan, instructed by Hong Kong Bar Association, for the Appellant (Bar Free Legal Service Scheme).