HKSAR v. Chung Kau Mui

HCMA 1241/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 1241 OF 2004

(ON APPEAL FROM KCCC 11800/2004)

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BETWEEN

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Before: Hon Beeson J in Court

Date of Hearing: 8 April 2005

Date of Judgment: 8 April 2005

Date Reasons for Judgment Handed down: 11 May 2005

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REASONS  FOR  JUDGMENT

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1.The Appellant was convicted after trial in the Magistracy of one charge of Attempted Theft.  He was sentenced to 15 months’ imprisonment and now appeals against sentence.

2.The victim of the attempted robbery (PW1), who runs a fruit shop in Yaumatei, kept his shop cheque-books in a drawer in a cockloft above the shop.  He did not know the Appellant and had never given anyone authorization to use his cheques.  He has no son.

3.On 7 June 2004, the Appellant attended the bank and handed over a cheque drawn on the victim’s account to cash it.  Bank staff who were suspicious for some reason asked the victim to attend.  He examined the cheque at the bank and confirmed that it was a cheque number from his account made out in the sum of $58,600, but that although the signature looked a little like his, it had not been written by him.

4.The Appellant told PW1 that the cheque had been given to him by PW1’s son and he was trying to cash it.  PW1 told the Appellant that he had no son and asked him to go to the police station with him.  The Appellant agreed, but he made off before reaching the police station.  He was eventually arrested at Lo Wu check point, about 3 months later.

5.The Appellant’s premises were searched and the cheque was found in one of his jackets.

6.PW1 confirmed that the cheque had been removed from his cheque-book and on 29 October 2004, he identified the Appellant as the man who had attempted to use his cheque on 7 June 2004.  The Appellant had made three cautioned statements in which he admitted his attempts to cash the cheque and explained, rather vaguely, how he found himself in the position of being about to cash the cheque.  His explanations were rejected by the Magistrate.

7.There was no evidence before the Magistrate that the Appellant had removed the cheque from the cheque-book, nor was there any evidence that he was responsible for the forged signature.

8.The Appellant was represented at trial.  He had a clear record.  In mitigation, the court was told he was aged 40 and was an unemployed transportation worker receiving CSSA.  He was divorced and had custody of his son.

9.The Magistrate said he considered all sentencing options.  No reports were sought.

10.The Magistrate noted that the cheque for $58,600, if cashed would have been a substantial loss for PW1.  The Appellant had not pleaded guilty and the fact that it was a conviction for attempted theft was due only to the alertness of the bank staff.  He found that the Appellant had not shown any remorse throughout the proceedings and stated:

“I found that a deterrent sentence was apposite.  I found that fifteen (15) months in prison was right and I sentenced accordingly.”

Grounds on Appeal

11.Mr Wilson Chan submitted on behalf of the Appellant, that taking into account all the circumstances of the case, the sentence was excessive.  The circumstances relied on were that the Appellant was a first offender, that the offence was amateurish and was almost certain to have resulted in the Appellant’s being caught and that no actual loss was caused to the victim.  The Appellant had written his own identity card number on the back of the cheque, at the time he tried to cash it.  He had waited at the bank when requested to do so.

12.Counsel submitted that a deterrent sentence of 15 months’ imprisonment was wrong in principle and manifestly excessive, particularly as the Appellant was a first offender.

13.A number of cases were cited to this effect, the most pertinent of which are HKSAR v Chan Mo Kong [1998] 1 HKLRD 678; R v Leung Kwong [1993] 2 HKCLR 224; and Attorney General v Lau Chiu-tak [1984] HKLR 23.

14.In R v Ng Tat Shing and Another [1977-1979] HKC 71 it was noted that although the general rule may be that an accused person of clear record would not normally be given a deterrent sentence, there were exceptions in certain cases.  The exceptions include trafficking in drugs, kidnapping and cases where there was an element of corruption.

15.Chan Mo Kong held that as a general proposition a sentence of general deterrence should not be imposed on a first offender.  However previous good character was not a prohibition against that course and if the facts were grave enough such a sentence may be perfectly proper.  It was also held, in principle that although sentences of a general deterrent nature, are of little value for offences committed on the spur of the moment, that was no bar to a deterrent sentence even in assault cases, where the circumstances demanded it.

16.Here, the Magistrate stated baldly that he considered a deterrent sentence was apposite,without making it clear whether this was a deterrent sentence specific to the Appellant, or whether it was for general deterrence, or whether it was for both types of deterrence.  Nor did the Magistrate explain why this case was so exceptional that the general principle of not imprisoning a first offender should not be followed.

17.I agree that this was an attempt to obtain a large sum of money by theft and that an immediate custodial sentence was correct.  However, given the amateurish nature of the attempt to cash the cheque and the absence of evidence indicating that the Appellant was involved in its removal, or in forging the signature, I am of view that a sentence of 6 months’ imprisonment would have been adequate punishment, to show the disapproval of the court and society generally towards thefts and attempts to subvert proper banking practices.

18.Accordingly this appeal against sentence is allowed and a sentence of 6 months’ imprisonment is imposed instead of the original sentence of 15 months’ imprisonment.

Mr Vincent Wong, SGC, of Department of Justice for the Respondent

Mr Wilson Chan, instructed by DLA, for the Appellant