HKSAR v. Kwok Shiu To, William

CACC474/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 474 OF 2005

(ON APPEAL FROM DCCC 963 OF 2005)

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BETWEEN

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

Date of Hearing : 24 March 2006

Date of Judgment : 3 April 2006

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

Background

1.The applicant was convicted of nine offences of theft following his plea before Deputy Judge Chainrai in the District Court.  In respect of each offence he was sentenced to 10 months’ imprisonment.  The sentences imposed in respect of the first three offences were ordered to be served consecutively, all other sentences were to be served concurrently.  That resulted in a totality of 30 months’ imprisonment.

2.The applicant now seeks leave to appeal those sentences.

3.The facts of the case were quite straightforward.  The applicant was the manager of a petrol station at Sau Mau Ping.  He was employed by a company Feoso Station Management Ltd (“Feoso”).  Each morning the applicant’s duties required him to hand over the previous day’s cash takings to a security company which then deposited them into Feoso’s account at the Shanghai Commercial Bank Ltd (“the bank”).

4.The applicant was a gambler.  In about February 2000, in order to fund his gambling habit, he began to use some of the cash takings of the petrol station.  To cover up what he was doing, he substituted his own personal cheques for the amounts he had taken.  His cheques were then deposited in Feoso’s bank account as part of the daily takings of the petrol station.  He told the bank he had the permission of Feoso to do so.  The applicant then deposited any winnings he made into his cheque account to cover the cheques he had drawn in favour of Feoso.  Additionally he had stolen a sum of money from the petrol station’s petty cash.  Not surprisingly this state of affairs did not last forever and by October 2000 the applicant could no longer deposit sufficient funds in his account to cover the cheques he drew in favour of Feoso.

5.Between 29 October and 5 November 2000, eight cheques totalling $518,500.00 were dishonoured by the applicant’s bank.  It was also discovered that a sum of $37,745.50 had been taken from petty cash by the applicant.  The matter was reported to the police and the applicant gave them his full co-operation.  He was subsequently able to repay Feoso the sum of $80,827.60.  However after being placed on police bail in February 2001 the applicant absconded, and though he remained in Hong Kong he was not rearrested until August 2005.

6.The theft of monies which underlay the eight dishonoured cheques formed the basis of charges 1 through 8.  The theft of the petty cash was the basis of the 9^th charge.

7.The judge in her reasons for sentence said :

“18. On each charge I take as a starting point 18 months’ imprisonment.  I give the defendant a discount of one-third for his pleas of guilty and a further discount of 2 months to reflect that some part, namely $80,827.60 of the total of $556,245.50 has been repaid.  On each charge the defendant is sentenced to 10 months’ imprisonment.

19.  The sentences are all separate and distinct offences and warrant consecutive sentences, but I do take into account the totality principle of sentence.  I order that the sentences in respect of Charges 1, 2 and 3, all be served consecutively, and the sentences on the remaining charges be concurrent to these.  The defendant is therefore sentenced to a total of 30 months’ imprisonment.”

Grounds of appeal

8.Mr Robert Andrews for the applicant puts forward a number of grounds of appeal.

9.Those grounds in our view can be fairly seen as raising two fundamental complaints.  Firstly that the judge adopted the wrong approach to sentence, and secondly that the totality of sentence was too severe.

The judge's approach

10.Mr Andrews argues that the approach adopted by the judge to sentence was wrong in principle.  He says that, rather than taking each charged offence individually and allocating a sentence to that charged offence and then achieving an appropriate totality by ordering the sentences to run partly concurrently, the correct approach should have been to decide upon an appropriate totality as an initial step and then work backwards from that so as to allocate individual but wholly concurrent sentences, to each individual offence.

11.It seems to us that when dealing with cases involving a series of offences that the question of totality is paramount and it perhaps matters less by which method that is achieved than that the total sentence be appropriate to the overall criminality.

12.No criticism can be made of the approach taken by the judge.  Indeed the approach taken by her not only allows a correct totality of sentence but allocates to each charged offence a level of sentence appropriate to that particular offence.  That is an approach which has been endorsed by this court on prior occasions : HKSAR v. Chiu Ping Kei, CACC476/2001 (unreported); HKSAR v. Wong Kam Tat [2002] 2 HKC 677; HKSAR v. Yeung Kwai Kuen [2002] 3 HKC 395.  In R. v. Chen Yueh Ling, CACC464/1996 (unreported), Mortimer JA said of a sentence where totality had been decided as an initial step and then sentences allocated to individual offences to achieve that totality :

“In principle, that was the wrong approach to totality.  The judge should approach each offence first and having decided what is the appropriate sentence on each offence, then consider the question of totality at the end.  But we are chiefly concerned with the overall sentence and not particularly with the way in which the judge reached that sentence.”

13.The “global” approach urged upon us by Mr Andrews would necessarily entail an artificially high sentence to be allocated to each offence, though (because all sentences were to be served concurrently) could in any event achieve an appropriate totality.

14.It may be in certain circumstances the “global” approach has some advantages, see HKSAR v. Wong Lou Tak [1998] 2 HKC 607 and the comments made in respect of that case in HKSAR v. Chui Ping Kei, CACC476/2001 (unreported).  But in the present circumstances the approach taken by the judge was appropriate.

15.Mr Andrews further argues that in ordering some only of the sentences to run consecutively to the others an element of arbitrariness is brought into play which is wholly unnecessary.

16.It is true that in achieving the desired totality of sentence a court will often have to order certain offences to run consecutively or concurrently.  But that process cannot fairly be described as arbitrary as submitted by Mr Andrews as its purpose and function is to ensure an appropriate totality of sentence and the selection of which sentences are ordered to be served consecutively or concurrently is undertaken with that specific end in mind.  We emphasise that at the end of the day in arriving at the appropriate totality the sentencer must look again at the overall criminality which the total sentence is designed to address and determine upon a total sentence which is appropriate in the circumstances of the case.

17.There in no merit in this aspect of the grounds of appeal.

The level of sentence

18.The complaint of Mr Andrews in this regard is that the totality of sentence arrived at by the judge was manifestly excessive.

19.He argues that as the totality of sentence eventually arrived at was 30 months’ imprisonment, it reflects the judge having taken a notional starting point of more than 45 months’ imprisonment.  He relies upon the judgment in R. v. Trevor Clark [1998] 2 Cr. App. R. 137, as adopted in Hong Kong by this court in Secretary for Justice v. Wong Kay Din, CAAR7/1998 (unreported), as suggesting that such a starting point was manifestly excessive.  We agree that the approach suggested by Mr Andrews is an appropriate method of testing the totality of sentence imposed in this case.

20.In Trevor Clark’s case, against the background of the general sentencing considerations which arise in breach of trust cases such as the present, the court said :

“In the light of all these considerations, we make the following suggestions.  We stress that they are by way of guidelines only and that many factors other than the amount involved may affect sentence.  Where the amount is not small, but is less then £17,500, terms of imprisonment from the very short up to 21 months will be appropriate; cases involving sums between £17,500 and £100,000, will merit two to three years; …”

21.Trevor Clark was decided in 1997, but the sentencing guidelines set out therein were effectively those suggested in R. v. Barrick (1985) 81 Cr. App. R. 78 as adjusted for inflation.  Barrick was decided some 20 years ago and in the near future it may well be appropriate to revisit the sentencing bands suggested in Trevor Clark in the context of offences of this sort in Hong Kong.  But for present purposes we think it fair to proceed on the basis of the Trevor Clark guidelines.  Of course those guidelines must be seen in terms of the Hong Kong dollar equivalent.

22.On that basis there can be no complaint made in respect of the sentences allocated by the judge to the individual offences, though we consider that the full discount given to the applicant for his plea of guilty should have been reduced to reflect his absconding while on bail : see HKSAR v. Lo Shiu Wah, CACC399/1999 (unreported).  But we agree with Mr Andrews in regard to the totality of sentence.  Given that the breach of trust in the present case while significant was not the worst of its kind, we can see no reason why the eventual totality of sentence which was imposed reflected a notional sentence of something like 45 months’ imprisonment after trial.  There appears nothing in the facts of the case which would justify the imposition of a sentence of imprisonment so far outside the general bands of sentence suggested in Trevor Clark.

23.We accept Mr Andrews' argument that the totality of the sentences imposed should have reflected a notional starting point within the second band of Trevor Clark.  That in our view would have resulted in a notional overall starting point of 30 months’ imprisonment.  As we say the totality of sentence should have allowed for something less than the full discount for the applicant’s plea of guilty.  We think a reduction of only 20% was appropriate.

24.Taking those matters into account together with the applicant's partial restitution we are of the view that a totality of sentence of 20 months’ imprisonment should be imposed.

25.Accordingly we allow the application, treat the application as the appeal and allow the appeal to the extent as follows.  We order that the sentences imposed by the judge be served wholly concurrently except that the sentence of 10 months of imprisonment imposed in respect of the 1^st charged offence be served consecutively to the sentences imposed in respect of the other offences.  That results in a totality of sentence of 20 months' imprisonment.

Mr Henry Hung, GC of the Department of Justice for HKSAR

Mr Robert Andrews, assigned by the Director of Legal Aid, for the Applicant