Attorney General v. Ngan Suen Kee

IN THE COURT OF APPEAL

Application for Review
1987 No. 2

BETWEEN

Coram: Hon. Cons, V-P., Silke, J.A. & O'Connor, J.

Date of Hearing: 4th February, 1987

Date of Delivery of Judgment: 4th February, 1987

________________

JUDGMENT

________________

O'Connor, J. delivered the judgment of the Court:

1. This is an application by the Attorney General under s.81A of the Criminal Procedure Ordinance for a review of sentence. The only point taken by the Attorney General is that the sentence imposed is wrong in principle, in that the sentence of imprisonment ought not to have been suspended. No point is taken on the length of the sentence.

2. The accused, who was aged 33, pleaded guilty to a charge of conspiracy with another person to defraud, but, in effect, there is little difference between what he did and an employee frequently putting his hand in the till.

3. The accused joined the Post Office in 1973, and he became a postal officer at the Parcel Acceptance Counter of the General Post Office. Part of his duties was to produce postage labels from a franking machine and to sell the labels to customer. Over a period of 23 months, with his co-conspirator, another postal officer, he tampered with the machine so as to produce labels without a record being kept of those labels. He did this at the General Post Office itself, and also at his home to which he had taken the machine. Labels to the value of $350,000 were produced, and the cash for those labels was pocketed by the conspirators. The accused was arrested after labels were found in his locker. He had received $50,000 from this enterprise, and his co-conspirator received $300,000. Both of them have refunded in full.

4. The accused was sentenced to two years' imprisonment suspended for 3 years and was fined $75,000. His co-conspirator, who also pleaded guilty, was given a 2 years' suspended sentence and a fine of $50,000.

5. The matters to be observed, as regards the sentence which ought to have been imposed in this case, are that it was a breach of trust continuing over a period of some 23 months. There was not inconsiderable profit to the conspirators if they had got away with it, and the fact that the offence continued over such a period seems to indicate that it was difficult to detect. There would have been a substantial loss to the public purse if repayment had not been made. Matters of mitigation would be previous good character, as one would expect of a person who was in a position to commit this offence. This applicant also appears to have been recruited by his more culpable co-conspirator. He pleaded guilty. As one would expect he has lost his job and pension. He co-operated with the police, revealing all that he knew, and his revelation enabled the police to catch the co-conspirator. There was a delay of some ten months between his arrest and his being brought up for plea.

6. The sentencing judge was aware of those matters, and in his Reasons for Sentencing, he said at the very last paragraph as follows:-

"While I consider that the offence committed by this accused would normally warrant an immediate custodial sentence, having regard to the sentence passed upon the co-accused, I was of the view that in all the circumstances, and having regard to the above factors, it would be wrong and unfair to impose an. immediate custodial sentence upon the accused. He has lost all his profits from the scheme, he has lost the pay he got during the period of interdiction, he has lost his job and his pension. I don't think in this case an immediate custodial sentence would serve any useful purpose."

7. In the decision of The Queen v. Barrick (1985) 7 Cr. App. R. (S) 142 at p.146, the Court of Appeal were laying down sentencing guidelines for breach of trust cases, and in the course of the judgment, it was said that -

"In general, a term of immediate imprisonment was inevitable, save in very exceptional circumstances or where the amount of money obtained was small. Despite the great punishment that offenders of this sort brought upon themselves, the court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence. The sum involved was obviously not the only factor to be considered, but it might in many cases provide a useful guide."

And further on in the judgment it was said -

“The terms suggested were appropriate where the case was contested: in any case where there was a plea of guilty the court should give the appropriate discount. It would not usually be appropriate in cases of serious breach of trust to suspend any part of the sentence."

And then the judgment goes on, to deal with matters to which regard would have to be paid, in determining the proper level of sentence in a particular case.

8. The principle that only in an exceptional case would it be proper to pass a sentence, other than an immediate custodial sentence, in cases of breach of trust, was approved by this Court in the Attorney General v. LAM Tai-kuen, Application for Review No. 16 of 1986. In such cases sentences of immediate imprisonment are called for as a general deterrent, and additionally to mark publicly the gravity of the offence.

9. In the present case, there appear to be no circumstances which individually, or cumulatively amount to exceptional circumstances.

10. It is clear from the passage we have referred to from the Judge’s Reason for Sentencing that he placed great weight on the fact that a more culpable co-conspirator had received a suspended sentence. That sentence may itself err in principle, but Crown Counsel is not prepared to go so far as to say it does. In any event, the Attorney General did not apply to review that sentence of the co-conspirator, perhaps because enabled charges to be laid against 14 other persons, and was prepared to and was expected to give evidence against them; The accused is not in the same category as his co-conspirator on these matters.

11. However that may be, the sentencing judge was clearly unaware of the principle laid down by the Court of Appeal in The Queen v. SO Hung-lee, Cr. App. 408 of 1985, that the sentencing judge is in no way bound by, but should ignore an inappropriate sentence passed on the co-accused.

12. In the result, the sentencing judge's discretion miscarried in three respects. He put the accused and his co-conspirator in the same category when he ought not. Secondly, he was unaware of, or in any event, did not apply the case The Queen v. SO Hung-lee. Thirdly, he considered that in this case an immediate custodial sentence would not serve any purpose, whereas in fact it may serve as a general deterrence, and mark publicly the gravity of the offence.

13. The Attorney General does not query the length of the sentence imposed, that is two years' imprisonment. We consider that two years is not inappropriate. As this is an application for review, we order an immediate sentence of 18 months imprisonment.

Mr. A.A. Bruce, Sr. Crown Counsel for the applicant.

Mr. Peter Nguyen inst'd. by Patrick Chung & Co. for the respondent.