HKSAR v. Tsang Chi Sang and Others

HCMA001076A/1999

HCMA1076/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1076 OF 1999

(On Appeal From NKCC 3836 of 1999)

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Coram: Hon Gall J in Court

Date of Hearing: 10 November 2000

Date of Judgment: 10 November 2000

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J U D G M E N T

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1. Having dealt with the appeals against convictions, I now turn to the appeals against sentence of the 2nd appellant in respect of the 2nd charge which he faced, and the 3rd appellant in respect of the one charge she faced.

2. Each of the two appellants were sentenced to a period of seven months' imprisonment in respect of each charge. The magistrate in passing sentence did so upon the basis that these sentences were to be a deterrence to others so that members of the public would be protected. He said this :

".... I therefore took the view that any sentence to imposed needed to have sufficient deterrence to deter others from embarking on a similar course, as I believed for this type of case the public would demand deterrence over rehabilitation in order to protect its young people from such scams. ...."

He further went on to say :

"I considered whether I should suspend the sentences in this case. However after balancing up the factors that I needed to take into account when considering such, I found that a suspended sentence would be inappropriate in this case in view of my belief that the public would demand deterrence over rehabilitation."

3. The appellants in this case are each of about 26 years of age and are first offenders. They were both employees of the company that was set up and run by the 1st appellant whose appeal against conviction has been allowed. The 1st appellant ran the company, conducted the accounts of the company and was the signatory in respect of the cheques for the company. These two appellants occupied a far lower position in the scheme of things and, in the ordinary course of events, not being involved in the ownership of the company, would not have been expected to have reaped the rewards that may have to come to the 1st appellant. A legitimate sense of grievance could be said to be raised in the mind of these appellants given the difference in sentence between them and the 1st appellant. Further, I am not satisfied that in respect of these two appellants, a deterrent sentence is necessary.

4. Each now faces one charge, neither of which is for a significant sum of money. The penalty which should be imposed is one that reflects the overall totality of the criminality of the actions they performed.

5. The appeal against sentence in respect of each of these appellants will be allowed to the extent that a sentence of seven months' imprisonment will be replaced by one of three months' imprisonment, and in respect of each of these appellant, that sentence of imprisonment will be suspended for a period of 18 months.

Representation:

Mr B.M. Ryan, SADPP of Department of Justice, for HKSAR

Mr G. Plowman, S.C., instructed by Messrs Chow, Griffiths & Chan, for the Appellants