HKSAR v. Tsang Shu Chung

HCMA001303/2001

HCMA 1303/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1303 OF 2001

(ON APPEAL FROM NKCC 6985 OF 2001)

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Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 10 January 2002

Date of Judgment: 10 January 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 pleaded guilty before a magistrate to 8 offences of procuring an entry in a bank record contrary to s.18D(1) of the Theft Ordinance Cap. 210. In respect of each offence the appellant was sentenced to 8 months' imprisonment. The sentences were ordered to be served concurrently. That resulted in a total sentence of 8 months' imprisonment.

2.The facts of the case were that the appellant had received Comprehensive Social Security Assistance since about 1997. In 1999 on

3separate occasions the appellant, in claiming assistance under the scheme, provided a total of 8 forged rental receipts to the Social Welfare Department pursuant to his claim for reimbursement for rental payments. Those rental receipts claimed that the appellant had paid a total of $14,698.87 in rent in respect of particular premises.

3.In fact the appellant had never been a tenant of those premises and he had never paid the rental amounts he claimed in respect of those premises. The Social Welfare Department, acting on the contents of the forged rental receipts deposited the sum of $14,698.87 into the appellant's bank account. The appellant now complains before me that his sentence was too severe.

4.In the course of his reasons for sentence the learned magistrate said:-

"Charges relating to fraudulent claims for payment of allowances from the Government are serious and unless there are special circumstances a custodial sentence is appropriate."

5.With that I agree. The Comprehensive Social Security Assistance scheme is designed to provide public funds to persons who are genuinely in need of assistance from the community. Fraud such as that in the present case undermines the proper operation and effect of such schemes. The ultimate victims are those who genuinely need the scheme's assistance.

6.For that reason, sentencing considerations in respect of offences of fraud directed against the scheme are dominated by the need for deterrence of offenders and, for that reason, usually require sentences of imprisonment. The magistrate in his Statement of Findings referred to cases which adopted starting points of from 12 to 15 months in respect of similar offences: HKSAR v WONG Kam-sang MA 1156/99 and HKSAR v CHO Kwun-wah (1998) 2 HKC 738.

7.In my judgment the starting point of sentence which the magistrate adopted in the present case, so far as each offence is concerned, of 12 months' imprisonment cannot be said to have been too high. The appellant received a full discount of 4 months reflecting his plea of guilty and the magistrate further ordered that all sentences imposed in respect of the 8 separate offences be served concurrently. The totality of 8 months' imprisonment cannot be said to be too severe.

8.Today, however, the appellant, by way of a letter written by his wife, advanced certain humanitarian grounds before me. Those matters are to the effect that the appellant was a drug addict at the time of these offences and that after the Social Welfare Department had exposed the offences a period of

2 years elapsed before charges were brought against the appellant. The appellant's wife appeared in court today and she gave further and far more detailed information about the rehabilitation of the appellant in the 2 years between these offences being committed and charges eventually being brought against the appellant. In that period of 2 years the appellant, apparently as a result of his wife's determination and urging, managed to overcome his drug addiction and worked steadily at his job with a road maintenance contractor earning $13,000 a month. The delay of 2 years before charges were laid against the appellant was not explained before me today.

9.So the situation is that during that 2 years' period before charges were laid, the appellant's wife managed to pull the appellant and her family out of the difficulties that they had been in previously as a result of the appellant's drug addiction and into a life which at least offers some hope for the future.

10.I want to emphasize that the magistrate's sentence was perfectly proper. No doubt the material put before me today is of a wholly humanitarian nature, but it seems to me that in the circumstances of this case one last chance should be extended to the appellant. That is solely because of the fact that during the 2 years' delay before charges were brought against him the appellant's life has changed for the better. So has his family's, and, in my view, that is largely due to the determination and character of his wife. For those reasons, I am prepared to allow the appellant the final chance of a suspended sentence. I want to emphasize that this case is entirely decided upon its own facts and the leniency shown to the appellant, if that be what it is, in this case is in no way, shape or form to be taken as an indication of what a proper sentence in other cases may be.

11.Accordingly I order that the sentence of 8 months' imprisonment imposed by the magistrate in respect of each charge be suspended for a period of 18 months. For the avoidance of doubt that 18 months' period of suspension is to run from the date of the magistrate's imposition of sentence.

Representation:

Miss Lily Wong, SGC of the Department of Justice for the Respondent

Appellant in person