HKSAR v. Lee Oi Man

HCMA 168/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 168 OF 2006

(ON APPEAL FROM ESCC 162/2006)

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BETWEEN

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Before: Hon Beeson J in Court

Date of Hearing: 27 April 2006

Date of Judgment: 27 April 2006

Date Reasons for Judgment Handed Down: 19 May 2006

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REASONS   FOR   JUDGMENT

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1.The Appellant was convicted on her own plea to one count of Theft and sentenced to 3 months’ imprisonment.  She appealed against sentence.  The Perfected Grounds of Appeal against sentence were:

(1) The Magistrate erred in ruling out the possibility of other sentencing measures for the Appellant, and in particular, a Community Service Order option for which the Appellant was manifestly suitable.

(2) In all the circumstances of the case, the learned Magistrate placed too much weight on the preventive aspects of sentencing and failed to give proper regard to other aspects, particularly rehabilitation.

2.The Appellant, in her post as bank teller, processed a $4,000.00 cash deposit for a customer.  She wrote a deposit receipt for $3,000.00 and handed it to the customer who did not check it immediately and left the bank.  She then deposited the remaining $1,000.00 to her boy friend’s account.  The theft was discovered almost immediately.  The deposit slip which related to the bank account of the Appellant’s boy friend was found inside the rubbish bin at the Appellant’s counter.  The Appellant was arrested and under caution she said her friend needed money.  She had lent him a lot of money but did not want to lend him her money anymore, so she stole money from a customer and deposited it to her boyfriend’s account.

3.The Magistrate’s Reasons for Sentence are quite short.  He noted the Appellant had a clear record and asked for pre-sentencing reports.  Having considered the reports he was of the opinion that a Community Service Order was not an appropriate, or adequate, penalty given the serious breach of trust involved.

4.He adopted 6 months’ imprisonment as the starting point.  He allowed a reduction of one-third to acknowledge the Appellant’s plea of guilty and gave a further reduction of 1 month on humanitarian grounds.  He imposed a sentence of 3 months imprisonment.

5.It was common ground that this was a breach of trust situation. 

6.Mr Mughal, who appeared for the Appellant, did not dispute the Magistrate’s assessment of the case as serious.  He made various points in favour of the Appellant.  She is aged 23, was of previous good character, immediately admitted her wrong-doing and had pleaded guilty at the first available opportunity.

7.The sum involved was HK$1,000.00 which is quite small.  The Appellant had been fired from her employment on the day she committed the offence.  It was submitted that she had committed the offence out of sheer stupidity and naivety in order to help her boy friend.  At the date of the appeal, she had recently found work as an office manageress expecting to earn a commission of about HK$8,000.00 per month.  Her current employer gave her a reference stating that she had worked industriously, although that assessment was of limited value, given the short time she had been working.  The Appellant had a supportive family and the family relationship was harmonious.  The Appellant was remorseful.

8.The report sought by the Magistrate gave a favourable view of the Appellant and recommended a Community Service Order (CSO) for a maximum duration of 161 to 240 hours.

9.Mr Mughal argued that the mitigating factors were so strong as to qualify as peculiar and exceptional circumstances, which would justify the imposition of a Community Service Order, or the suspension of the sentence of imprisonment. 

10.He pointed out that the Appellant had already been in custody for 2 weeks while the CSO report was completed.

11.The Respondent relied on R v Barrick (1985) 81 Cr. App R 78, @ 81 where the Court of Appeal had made observations about the appropriate sentence to be passed in cases of theft and fraud committed by persons  “of hitherto impeccable character in a position of trust”.  The court specifically referred to the type of case where “an accountant, solicitor, bank employee or postman has used that trusted and privileged position to defraud his partners or clients or employers or the general public of sizeable sums of money”.  The court observed that “in general a term of an immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small” (emphasis added).  The principles in Barrick have been followed in Hong Kong.

12.Counsel for the Respondent pointed out that the Magistrate had noted the Appellant was employed as frontline staff in retail banking and she had abused the trust placed in her.  He found that an immediate custodial sentence was warranted not only as a deterrent to the Appellant, but also as a general deterrent.

13.Counsel for the Respondent referred to AG v Ngan Suen Kee [1987] HKLR 451, which held “only in exceptional case was it proper to pass a sentence other than an immediate custodial sentence in the case of breach of trust.  Such cases call for an immediate custodial sentence as a general deterrent and to mark publicly the gravity of the offence”.

14.This was a breach of trust and a serious one.  The Magistrate was right to take the view of it he did.  However, it seems that insufficient attention may have been paid to the small size of the sum stolen in the second exception mentioned in Barrick.  This was a single offence, rather than a series of offences.  It was an amateurish theft that was very easily detectable and was discovered on the same day it occurred.  The Appellant appeared to have made no attempt to destroy the document linking the money to her boy friend’s account, other than throw it in the rubbish bin.  Those factors distance the case from the Barrick category.

15.The Appellant, importantly, received a favourable CSO report.  A CSO is an alternative to imprisonment and one that might be of more use in rehabilitating an offender in this situation than an immediate custodial sentence.  The CSO report showed the Appellant had placed herself in a precarious position vis-à-vis her then boy friend by trying to meet his unjustified demands for money.  The Appellant would benefit from guidance and given her age that is likely to be achieved better by a CSO rather than imprisonment.

16.Accordingly, I allow the appeal against sentence and quash the sentence of 3 months imprisonment.  I order that a CSO of 240 hours be imposed by way of sentence. (Appellant consenting)

Miss Winnie Lam, SGC of Department of Justice, for the Respondent

Mr Hanif Mohamed Mughal, instructed by Messrs Paul W Tse, for the Appellant