HKSAR v. Lam Chun Hung

HCMA000087/1999

1999, No. MA 87

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 87 OF 1999

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Coram: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 20 May 1999

Date of Delivery of Judgment: 20 May 1999

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J U D G M E N T

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1. The Appellant appeals against sentence. He was a bus driver employed by the First Bus Co. Ltd. On 6th November 1998, he stole $40.00 out of the cash box of his bus. When interviewed on the following day by investigators in the employ of the bus company, he admitted the theft. The matter was reported to the police. When interviewed by the police under caution, the Appellant again admitted the theft. He was charged with theft and appeared before J.L. Saunders, Esquire in the North Kowloon Magistracy on 18th December 1998. Straightaway he pleaded guilty. The Magistrate sent for a Probation Officer's report in order to obtain background information about the Appellant.

2. On 5th January 1999, the Appellant appeared before the Magistrate for sentence. The probation report showed that the Appellant was a married man aged 56; that he and his wife came to Hong Kong from the Mainland in 1962; that they got married here one year later; and that they had in difficult circumstances raised four children who are now doing well. It was, until the Appellant's offence, a Hong Kong success story to warm one's heart.

3. The final paragraph of the Probation Officer's report reads:

"To conclude, Defendant led a decent life in Hong Kong in the past 37 years. He and his wife raised four children who had gainful employment or further their studies aboard at present. The family also enjoy harmonious relationship. Defendant worked steadily as a bus driver in the past. However, out of greediness, Defendant committed the present offence. He was fired by the company and felt very shameful of his behaviour. In view of the decent life of the Defendant in the past, his utmost contribution to his family and his remorseful attitude towards his present offence, supervision and guidance were considered to be unnecessary. Thus, probation supervision is suggested to be dispensed with."

4. When passing sentence, the Magistrate said this of the Appellant:

"I have considered carefully the terms of the Probation Officer's report and everything that Mr SHUM has said to me. It is necessary when passing sentence in respect of this matter to start by reminding myself that this is an act of theft as a servant. It is a breach of trust by you, the trust that your employer gave you to collect money on its behalf.

It is an offence which I am satisfied should be dealt with by a custodial sentence and not by merely a fine. I accept that you have pleaded guilty and you will have a full credit for your plea of guilty. The sentence I pass must act as a deterrent to other bus drivers to remind them that it is a breach of trust to steal from their employer.

I have considered carefully whether or not I should suspend the sentence. Despite the warm words that are spoken of you by the Probation Officer, I take the view that the requirement for a deterrent sentence outweighs.

You will be sentenced to one month's imprisonment."

5. In his Reasons for Sentence, the Magistrate in effect adopted what he said when passing sentence. Very properly, the Magistrate granted the Appellant bail handing appeal. There can be no doubt that the Magistrate was right to bear in mind that this was a case of an employee breaching his employer's trust. As I see it, a term of imprisonment was called for. But did it have to be a term of immediate imprisonment rather than a suspended one?

6. On this question, there are two highly relevant passages in the judgement of the English Court of Appeal (Criminal Division) delivered by Lord Lane, C.J. in the R. v. Barrick (1985) 81 Cr. App. R. 78, the case in which very helpful guidelines in case of theft or fraud in breach of trust are given. The first of these statements appears at p.81 where it is said:

"In general a term of immediate imprisonment, save in very exceptional circumstances or where the amount of money obtained is small."

Here the sum was very small being only $40.00.

7. The other relevant statement is at p.82 where it is said:

"It will not usually be appropriate in cases of serious breach of trust to suspend any part of the sentence."

In one sense, all cases of breach of trust are serious. But within this class of case, some cases are at the serious end and some are at the opposite end. The present case was at such opposite end. It was not elaborate. Nor did it involve conduct spread over a period.

8. In my view, careful as the Magistrate usually is, he did fail on this occasion to consider the factors which I have been discussing. This being so, I feel that I must look at the matter afresh with those factors in mind. Doing so and bearing in mind the Appellant's good character, his many years as a hardworking husband and father, his immediate admissions to the investigators and then to the police, and his plea of guilty, I am of the view that the plainly correct course is to suspend the Appellant's sentence. I will allow the appeal so as to suspend his sentence for two years. He will appreciate therefore that if he offends again during that period, he will be liable to be sent to prison for 30 days for this offence quite apart from any punishment imposed for the later offence or offences.

9. Having said that, I should say that I am confident that he will never offend again. I trust that he will, with the support of his family and hopefully others too, work to restore the good name which he has lost.

Representation:

Mr Christopher Grounds (instructed by Messrs. Ng, Lie, Lai & Chan) for the Appellant

Mr Simon Tam (of the Department of Justice) for the Respondent