HKSAR v. Lam Nga Wai

CACC000328/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.328
(Criminal)

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Coram: Power, V.-P., Mayo & Stuart-Moore, JJ.A.

Date of Hearing: 27 November 1998

Date of Judgment: 27 November 1998

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 27th May 1998, the Applicant pleaded guilty in the District Court to one offence of obtaining property by deception (charge 1), three offences of theft and three offences of using an identity card relating to someone else. She was sentenced on 10th June 1998 by Judge Toh to imprisonment for 12 months on the first charge and to 4 months' imprisonment on all the remaining charges which were ordered to run concurrently with each other but consecutively to the sentence on charge 1. The Applicant now seeks leave to appeal against the overall sentence of 16 months' imprisonment.

2. The facts were a little unusual. The female victim referred to in charge 1 was stopped by a man in the street one day on the pretext that a modelling contract could be arranged for her. About two months later, on 4th August 1997, following a meeting with the victim, the Applicant managed to get her identity card and her bank statements together with a photograph (charge 1) by persuading the victim that she would be featured in an advertisement for spectacles.

3. Three days later, the victim realized that she had been tricked into parting with her possessions when she came to discover that her personal data had been used to apply for an unauthorized loan. Briefly, an application had been made on 6th August 1997 for $50,000. The Applicant then cashed the loan cheque that had been approved in the amount of $30,000.

4. Using the same victim's dishonestly acquired property, the Applicant then went on, in similar style over the course of the next 24 hours, to obtain a further loan for $15,840 (charge 9) at another finance company, and she made an attempt, when she again produced the identity card of the victim in the first charge, to obtain a loan in the sum of $35,000. This was refused. It was when she went to a further finance company in search of a loan for $35,000 that a telephone inquiry revealed that the Applicant was not who she said she was. The police were informed and when the Applicant returned to find out the result of her latest loan application, she was arrested while still in possession of the original victim's identity card, $26,800 in cash and a large number of documents that revealed the full extent of her criminal escapade.

5. The Applicant said, when she was arrested, that she knew she was wrong and had done this because "Jessica" of "Golden Chance" had told her to do this.

6. These were, as the judge said, premeditated offences. The Applicant was 24, with previous good character, and she had made full restitution of the amount that was owed to the finance companies by the time the matter came to be dealt with in court. The judge expressed herself as having taken all of those matters into account. She then took 18 months' imprisonment as an appropriate starting point for the first charge and 6 months' imprisonment for the other offences. Giving a full one-third discount, those terms of imprisonment were then reduced to the terms earlier mentioned. Another way of looking at the end result is that the judge had taken two years as a starting point which she then reduced by exactly one-third to take account of the pleas.

7. Mr. Macrae in his first ground of appeal submits that the judge failed to give sufficient consideration to the circumstances in which these offences came to be committed, in particular the threats of physical harm and financial pressure exerted on the Applicant by the modelling company which had lured her into signing a contract she could not perform.

8. This ground cannot be supported. The judge made specific reference to the unusual background which the Applicant's counsel at trial had explained in mitigation had led to the commission of these offences. The judge in particular said, at p.22H:

"It is said in mitigation by Miss Chow that the cause of her commission of these offences was because of pressure on her by this modelling company, and that it is because of her wish to protect her aged grandparents and parents from knowing about this or from physical harm from this modelling company, she then decided to co-operate with this person called Jessica, who has not been found. But it is no excuse for these offences."

9. It is apparent that the judge was fully conversant with the reasons why it was said the Applicant had become involved in these criminal offences.

10. As to the second ground of appeal, it is submitted that the making of consecutive sentences was, in the circumstances of this case, wrong in principle. Again, we cannot agree with that submission. These were separate offences involving flagrant dishonesty, clearly deserving a more severe punishment than if only one offence in isolation had been committed. The judge was right to remark, in the course of her Reasons for Sentence, that if the last of the finance companies had not alerted the victim of charge 1, there was no doubt that her identity card would have been used on many more occasions to obtain loans. As the judge also remarked, it was fortunate for the Applicant that the total amount that she obtained before she was caught was only $56,840.

11. This leads to the last ground of appeal which is that the sentence of 16 months was manifestly excessive having regard to the circumstances in which the offences were committed, the pleas of guilty, the Applicant's clear record and her cooperation following arrest. All of the matters listed by Mr. Macrae were in fact in the judge's mind, but one feature of the cooperation is that full restitution had been made. It appears to this court that, although the judge made reference to restitution, she did not give any greater discount than a defendant who pleaded guilty in these circumstances would normally have received. We feel that this was wrong in principle. This was not merely a promise that had been made to pay restitution. It had actually been paid. The view we take is that the Applicant should have received a discount in the particular circumstances of this case, taking into account this important factor, together with all the other matters raised in mitigation of fifty per cent.

12. Accordingly, we shall give leave and, treating the hearing as the appeal, we allow the appeal against sentence. On charge 1, the sentence will be reduced from 12 months to 9 months and, for the remaining offences, where the sentences were originally 4 months, these will be reduced to three months, each concurrent with each other but consecutive to the sentence on charge 1. The result, therefore, is that the total sentence to be served is reduced from 16 months to 12 months. To that extent the appeal is allowed.

Representation:

Mr. John Reading, S.A.D.P.P. for D.P.P./Respondent

Mr. Andrew Macrae instructed by Messrs. Jackie Cheung & Co. for Applicant.