HKSAR v. Poon Tak Lok

CACC323/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 323 OF 2005

(ON APPEAL FROM DCCC 568 OF 2005)

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BETWEEN

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Before : Hon Ma CJHC, Stuart-Moore VP and McMahon J in Court

Date of Hearing : 2 November 2005

Date of Judgment : 2 November 2005

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J U D G M E N T

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Hon McMahon J (giving the judgment of the Court) :

1.The applicant pleaded guilty before Deputy Judge W. Lam in the District Court to an offence of theft, contrary to section 9 of the Theft Ordinance, Cap.210.  The amount stolen was $1,999,980.  The applicant was sentenced to 19 months’ imprisonment.

2.The facts of the offence were that the applicant was employed as an accounts clerk by the victim, an investment company called Xiamen International Investment Limited.  In the course of his duties, the applicant was entrusted with the victim’s cheque book.  Two authorised signatories, namely the company chairman and its financial controller, were required to sign the victim’s cheques.  The applicant forged the two authorised signatures on a cheque drawn in the amount of $1,999,980 and deposited that cheque into his personal bank account.

3.Two months later, the financial controller of the victim discovered the theft and questioned the applicant about it.  The applicant make a full admission as to his actions, and eventually a report was made to the police by the victim company.  The applicant subsequently surrendered himself to the police and again made a full admission as to the offence.

4.By the time of the report being made to the police, the applicant had repaid the victim the whole of the sum he had stolen.  The motive for his offence was said to be simple greed.  It was accepted by the applicant that his offence amounted to a breach of trust.  In sentencing, the Deputy Judge adopted a starting point of 38 months’ imprisonment.  Because of the applicant’s plea of guilty and full restoration of the stolen money, that was reduced to 19 months’ imprisonment.  That represents a discount of 50% from the starting point of sentence. 

5.The applicant who was represented by Mr Ken Ng of counsel before us seeks to appeal against sentence on the following grounds :

“1.	The Learned Judge erred in placing too much weight on the amount of money involved in the case; and/or failed to give sufficient or due weight to other relevant factors in considering sentence; and alternatively the Learned Judge erred in treating the guidelines as a tariff; and/or
2.	The Learned Judge set too high a starting point; and/or
3.	The sentence is manifestly excessive in all the circumstances of the case.”

Those grounds can be conveniently dealt with together.

6.The applicant’s first complaint is that the Deputy Judge placed too much weight on the amount of money stolen and regarded himself as bound to take a starting point of sentence within the guidelines suggested in R. v. Trevor Clark [1998] 2 Cr. App. R.137 as adopted in Hong Kong by HKSAR v. Chan Kai Chung, CACC12/2001 (unreported) and Secretary for Justice v. Chan Boon Ning, CAAR1/2002 (unreported).  There is no doubt that the guidelines suggested in Trevor Clark,which were based upon similar guidelines given in R. v. Barrick [1985] 81 Cr. App. R.78, are of the broadest guidance only to courts in Hong Kong not least because the facts of cases of the present sort can vary so widely.  The Deputy Judge said as much when passing sentence and referred specifically also to Chan Kai Chung where Yeung J (as he then was), after referring to the decision of Barrick, emphasised that the amount stolen in a case involving a breach of trust is just one of the factors to be taken into account in determining the appropriate sentence.  It is also plain from those cases that the bands of sentence suggested are in no way to be regarded as binding upon a sentencing court, but are offered as general guidance only.

7.In giving his Reasons for Sentence, the Deputy Judge said this :

“3.    Because the facts in Theft cases can vary widely, sentencing necessarily can differ significantly from case to case.  Although the Court of Appeal in CHAN Kai-chung CACC 12/2001 has said that the amount of money involved is only one factor to be considered, the starting point discussed in that case was not really different from what the Court later said in CHAN Boon-ning CAAR 1/2002, where it approved a general guideline for sentencing in commercial crimes according to the amounts of money involved. ….”

8.The Deputy Judge was perfectly aware of these sentencing principles and was obviously aware he was not bound by the guidelines.  It cannot be said he adopted the wrong approach in deciding to sentence within those guidelines as approved by this court in Chan Kai Chung and Chan Boon Ning.  

9.In following those guidelines (as they apply to the equivalents in Hong Kong currency), the Deputy Judge took a starting point of three years and two months’ imprisonment.  Mr Ng for the applicant further argued before us that in doing so, the Deputy Judge ignored other matters that should have been taken into account and which would have reduced that starting point of sentence.  He particularly relied upon the facts that the applicant was an accounts clerk and not in a senior position within the victim company, and that the offence was a single offence and not part of an ongoing pattern of fraud, as is often the case.  Mr Ng said also the Deputy Judge failed to give full credit to the remorse of the applicant as evidenced by his early admission and cooperation with the authorities, and by his full repayment of the money taken.  He said also the effect upon the victim company and the public was small, but that the effect upon the applicant was great, as he had lost his job and had been convicted of this offence just before his attainment of his final professional qualification as an accountant.

10.Matters concerning evidence of the applicant’s remorse, that is, his plea of guilty, cooperation with the authorities and repayment of the stolen monies go to mitigation and would not normally be taken into account by a court in arriving at a starting point of sentence.  The same applies also to the effect the conviction and sentence has upon the offender.

11.The matters therefore before the Deputy Judge in considering the starting point of sentence were the amount of money taken and the position of trust the applicant held in the victim company.  On the facts of the present case, there were no other significant factors.  In adopting his starting point of 38 months’ imprisonment, the Deputy Judge went to the lower end of the “scale” set out in Trevor Clark.  In doing so, he was obviously of the view that the present case was not the worst of its kind, and in coming to that conclusion, he had no doubt taken into account the singular nature of the offence and the applicant’s relatively junior position in the victim company.

12.In our judgment, the approach of the Deputy Judge was not wrong in principle and the starting point of sentence, if anything, was on the low side.

13.No realistic complaint can be made of the discount of 50%.  The Deputy Judge obviously allowed for all the mitigatory factors advanced before him, the most important of which were the applicant’s remorse as reflected in his plea of guilty and his early repayment of the stolen monies.

14.Finally, Mr Ng suggested in his submissions before us that the Deputy Judge was wrong not to consider the alternative of a community service order.  With respect, it is plain that he had done so.  The possibility of such an order being made was raised during mitigation before the Deputy Judge, though counsel at that time (who was not Mr Ng) accepted that the applicant was aware a custodial sentence would likely be imposed.

15.When passing sentence, the Deputy Judge decided that a sentence of immediate custody was appropriate given the sum of money stolen and the position of trust the applicant held.  The Deputy Judge’s conclusion in that regard cannot be criticised.  In Barrick, Lord Lane CJ said this :

“      In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small.  Despite the great punishment that offenders of this sort bring upon themselves, the Court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence. ….”

16.In our judgment, a sentence of immediate imprisonment was appropriate on the facts of the present case.  The sentence imposed by the Deputy Judge was neither wrong in principle nor manifestly excessive.

17.The application is dismissed.

Ms Grace Chan, SGC of the Department of Justice, for HKSAR

Mr Ng Kin Man, Ken, instructed by Messrs Lee Shing Fung & Co., for the Applicant