HKSAR v. Goh Swee Yan Angelina

CACC000491A/1999

CACC 491/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 491 OF 1999

(ON APPEAL FROM DCCC NO. 457 OF 1999)

______________

______________

Coram: Mayo V-P, Wong JA and Keith JA in Court

Date of Hearing: 9 November 2000

Date of Judgment: 9 November 2000

_______________

J U D G M E N T

_______________

Keith JA (giving the judgment of the Court):

Introduction

1. Angelina Goh was tried by Deputy Judge Duggan in the District Court on a charge sheet containing three charges. In the first charge, she was charged with procuring the making of an entry in a record of a bank by deception contrary to section 18D of the Theft Ordinance (Cap. 210) ("the Ordinance"). In the second charge, she was charged with theft contrary to section 9 of the Ordinance. In the third charge, she was charged with evading a liability by deception contrary to section 18B of the Ordinance. She pleaded not guilty to all three charges. She was acquitted on the third charge but convicted on the first two. She was sentenced to two years' imprisonment on each of those two charges to be served concurrently with each other.

2. She initially applied only for leave to appeal against her convictions. Leave to appeal against her convictions was granted, but by a majority her appeal against her conviction on the first charge was dismissed. However, the Court of Appeal unanimously decided to substitute for her conviction of theft on the second charge a conviction for the offence of evading a liability by deception.

3. Her case is before the court today for two reasons. First, when substituting the conviction on the second charge, the court said that it would be necessary to restore the appeal to consider the sentence to be imposed on the substituted charge. Accordingly, she is before the court today to be sentenced on that substituted charge. Secondly, she is now applying for leave to appeal against her sentence on the first charge out of time. The reason she has given for not initially applying for leave to appeal against sentence is that her lawyers had advised her that the sentences imposed were appropriate. Since then, newspaper articles which she has read and the views expressed to her by fellow inmates have led her to believe that her sentences were out of line with sentences normally imposed for cases involving deception and false accounting. Since the court has to decide the proper sentence on the substituted charge, we are prepared to extend her time for applying for leave to appeal against her sentence on the first charge.

The relevant facts

4. The charges which Angelina Goh faced arose out of her close friendship with Amy Ng. We referred to the two of them as Angelina and Amy in the judgments relating to the application for leave to appeal against conviction, and we propose to continue to do so now. The facts relating to the first charge were that, in order to repay gambling debts, Angelina telephoned Amy's bank manager and falsely claimed that Angelina wanted the sum of $1.07m. to be transferred to a particular account. Believing that that was true, the bank manager gave instructions for the money to be transferred. The entry in the bank record which Angelina procured by that deception was the deposit entry in the account to which the $1.07m. was transferred.

5. The facts relating to the second charge were that Angelina was due to pay to Amy the sum of $3.3m., either on the basis that this sum represented the repayment of a loan which Amy had made to Angelina plus interest or on the basis that this was a sum for which Angelina was required in law to account to Amy. She tricked Amy into not expecting the return of the money for another three months, and that enabled her to use the money in the meantime.

The judge's approach

6. In sentencing Angelina, the judge referred to the fact that, as a result of the deceptions practised by Angelina, Amy never got her money back and had therefore lost over $4m. The judge treated Angelina as having betrayed Amy's trust in her. He took into account reports on Angelina from a probation officer and a clinical psychologist which showed that, although Angelina had obtained a law degree and had held responsible jobs in the law, she had incurred gambling debts and had turned to alcohol as a means of escape from her financial problems. She was said to have had little insight into her emotional upheaval or into the cycle of gambling and drinking to which she was subject. In the end, the judge took 2 1/2 years' imprisonment as his starting point for the totality of Angelina's offending, and he reduced that by six months to reflect her clear record.

The court's view

7. We have concluded that the substitution of a conviction for evading a liability by deception for the second charge should not make any difference to Angelina's sentence. The maximum sentence for such an offence is ten years' imprisonment as it is for theft. The fact that a different label has been applied to her conduct does not alter her conduct or make her conduct any the less serious. If two years' imprisonment, therefore, was an appropriate sentence on the second charge, it remains the appropriate sentence on the substituted charge.

8. On the first charge, Angelina makes the point that she thought that Amy would have consented to her using Amy's money to settle her pressing gambling debts. That may or may not be so, but the gravamen of Angelina's offence was that she tricked Amy's bank manager into giving instructions for the funds to be transferred by lying to him that she had express authority to arrange for their transfer. But for that deception, there would have been little chance of the bank manager acceding to her request. The judge, in our view, was right to treat the first charge as a charge which involved the betrayal of Amy's trust because, even if Angelina had thought that Amy would not have minded about the transfer of the funds, Amy would nevertheless have trusted Angelina to deal honestly with her bank manager. That was the trust which Angelina betrayed.

9. Mr Philip Ross has represented Angelina on the substituted charge. He has in effect said that the judge was wrong to take into account the fact that Angelina's use of the $3.3m. resulted in Amy losing that money altogether. The same point could be made on the first charge. In other words, the point could be made that the judge was wrong to take into account the fact that Angelina's use of the $1.07m. resulted in Amy losing that money as well. The argument is that, unlike the original charge of theft in the second charge, the ultimate loss of the money was not an ingredient of either the charge of procuring the making of an entry in a bank record by deception or the charge of evading a liability by deception. That may be so, but in our judgment a court is entitled, in determining the proper sentence, to take into account the consequences of a defendant's offending. The consequence in this case was that Angelina had the use of funds to which she was not entitled, and that she used them in such a way which resulted in Amy not being able to recover them.

10. We have taken into account Angelina's personal circumstances which were set out with characteristic comprehensiveness in the reports before the judge. We do not propose to set them out today, but we have not overlooked the fact that Angelina has an elderly mother in frail health who is emotionally and financially dependent on her. We have put to the back of our minds the fact that if Angelina earns full remission she will be released from prison next month. But we have considered carefully whether it can be said that the sentences which the judge imposed were manifestly excessive in their totality. We have concluded that they were not. Moreover, the sentences were not, we believe, out of line with sentences normally imposed for cases involving deception relating to sums of this magnitude where there has been no suggestion of repayment of those sums to the victim.

Conclusion

11. In these circumstances, the application for leave to appeal against the sentence of two years' imprisonment on the first charge is dismissed, and on the substituted charge we impose a sentence of two years' imprisonment, to be served concurrently with the sentence on the first charge.

Representation:

Mr Philip Ross, instructed by the Director of Legal Aid, for the Applicant (charge 2 only).

Applicant in person (charge 1 only).

Mr Isaac Tam, of the Department of Justice, for the Respondent.