Attorney General v. Leung Kam-to

CAAR000005/1979

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Coram: Huggins, J.A., Cons and Yang, JJ.

Date of Judgment: 15 November 1979

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JUDGMENT

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Huggins, J.A.:

1. This is an application by the Attorney General for review of a sentence of six months' imprisonment suspended for two years. The Respondent before us was one of four men charged. All were given the same sentence and the Attorney General applied for review against all those Defendants. Only this Respondent has been served and the case for the time being remains outstanding against the others.

2. It was a case of a "tin sin kuk", a swindle of somebody who, in the nature of things, would normally be reluctant to reveal his part in the affair, because it involved cheating by him. Two of the conspirators, of whom the present Respondent was one, entered into a transaction for the purchase of bricks from the victim. The introduction was made by a former employee of the victim's factory. Thereafter, the Defendants told the victim that they knew of an overseas buyer who had a very large sum of money for investment in real estate in Hong Kong and who also required bricks for his development. This man was introduced to the victim, but thereafter the Defendants indicated that this would-be purchaser was a man addicted to gambling and that he had already lost a portion of the money that he had brought for investment, and he thus raised in the victim a fear that any agreement that he had with this other purchaser might come to naught because the money would have been dissipated. It was suggested to him that in order to prevent further dissipation of the money he should enter into a game with the purchaser, that he should cheat in order to win the purchaser's money and thus deter him from further gambling, and that the money thus won by the victim should then be repaid to the purchaser.

3. This is a typical case of a "tin sin kuk". The amount of money which was gambled and, of course, lost by the victim was $100,000. This Respondent, who was related to the 2nd Defendant, was present at the original transaction for the purchase of bricks, He was also present at the second meeting at which the further transaction was discussed. He was a party to the game and he was also one of the two men with whom an arrangement was subsequently made to discuss repayment of the money to the overseas purchaser, a repayment which of course was never intended to be made.

4. The learned magistrate considered all the material factors save the fact of restitution of the money and came to the conclusion that one year's imprisonment would be appropriate. He then took the view that if the Respondents were not imprisoned they might be able to make restitution of the $100,000 to the victim, a restitution which would not be likely if they were incarcerated. For that reason, and for that reason alone, he did not impose the sentence of one year's imprisonment which he had in mind but instead passed the sentence of six months' imprisonment suspended.

5. It transpired that the hopes which the victim had of recovering this money were dashed and the learned magistrate has indicated that in his view he was in error in altering the sentence on the basis of possible restitution. We respectfully agree with him. In our view the sentence which he originally intended to impose was a proper sentence for this offence. However, it has been argued that the considerations upon a review are completely different from those at the original trial. That we do not accept: they are not completely different. It is, however, the practice of this court to take the fact that it is a review into account and to impose a somewhat more lenient sentence upon a review where it decides to interfere than it would have imposed if the case had been heard before the court at first instance. Here we think that, taking into account the fact that this is a review, the state of health of the Respondent and the strain that necessarily he has suffered, we should grant this application and substitute a term of nine months' imprisonment.

15th November 1979.