HKSAR v. Cheung Mee Kiu

CACC99/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 99 OF 2006

(ON APPEAL FROM DCCC 400 OF 2005)

---------------------

BETWEEN

----------------------

Before : Hon Ma CJHC and Burrell J in Court

Date of Hearing : 23 November 2006

Date of Judgment : 23 November 2006

Date of Reasons for Judgment : 4 December 2006

__________________________________

REASONS  FOR  JUDGMENT

__________________________________

Burrell J (giving the reasons for judgment of the Court) :

1.On 6 March 2006 the applicant was sentenced to 4 years and 4 months’ imprisonment by Deputy District Judge Yau in the District Court.  At the conclusion of the hearing we refused the application for leave to appeal against sentence.  These are our reasons.

2.The applicant had pleaded guilty to 5 offences.  She was 61 years of age at the time of her sentence and was a lady of positive good character.  She had been the owner and manager of the Moon Kee Jewellery Company for 40 years.  The company was a family run company which owned two jewellery shops in Kowloon.  Her husband and one of her sons had also worked in the business.  For many years it had been a successful enterprise but sadly, due to the economic downturn across the region and the SARS epidemic, the business, from the late 1990’s onwards, went quickly downhill and effectively collapsed.

3.Between October 2002 and May 2003, she took drastic and dishonest measures in a misguided attempt to salvage her business.  She pawned hundreds of items of jewellery from her stock which had been entrusted to her from other jewellery companies.  She pawned many items of jewellery which had been entrusted to her by members of the public who had brought them to her shop for repair.  Finally she ordered large amounts of jewellery from suppliers which she paid for with post-dated cheques which were later dishonoured.  These items also were pawned.

4.Charge 1 was an offence of conspiracy to steal.  It involved 36 separate incidents of jewellery being pawned.  In many instances one transaction involved numerous items.  For example on 3 February 2003 40 diamonds were pawned in one transaction.  The conspiracy involved 20 different suppliers.  The total value of the property pawned was $4,335,245.  The police managed to recover property to the value of about $2,875,000 having seized pawnshop receipts from the applicant’s premises.

5.For this offence the applicant was sentenced to 3 years’ imprisonment, the judge having taken 4½ years as a starting point.

6.Charge 2 was an offence of theft.  Twenty different suppliers had entrusted jewellery to the applicant on a sale or return basis.  It had a total value of $2,282,968.  It was all pawned.  None was recovered.

7.For this offence, a sentence of 2 years and 4 months was passed from a 3½ years starting point.

8.Charge 3 was also a theft.  Jewellery worth $206,350 had been brought to the shops by customers for repair.  It was all pawned and none was recovered.  She was sentenced to 1 year and 4 months for this offence, the starting point having been 2 years.

9.Charge 4 was a conspiracy to steal.  It involved a single item, namely a diamond ring valued at $24,000.  It also was pawned.  It was later recovered.  A 6-month sentence was passed.

10.Charge 5 was an offence of conspiracy to defraud.  Over a two-week period in April 2003 the applicant ordered from 26 different suppliers jewellery worth $3,124,418.  She paid for them with post-dated cheques which were later dishonoured.  All the items were pawned.  $72,000 worth of items were recovered.  The judge selected a starting point of 4 years for this offence, which he discounted to 2 years and 8 months.

11.All the money received by the applicant from the various pawnbrokers was put into the company accounts which were heavily in debit.

12.The total value of all the goods pawned in all five accounts was marginally under $10 million.

13.The judge reached the final sentence of 4 years and 4 months in the following way.  He clearly considered the overall criminality and the total value of the goods stolen.  In a detailed reasons for sentence he concluded that a sentence of 6 years and 6 months would have been appropriate after trial.  He also set out all the migitation which had been advanced on the applicant’s behalf and reduced the sentence to 4 years and 4 months “having considered the whole circumstances of the case, including the previous good character of the 1^st accused, the recovery of some of the stolen items and the contents of the various letters”.  The mechanics he used to achieve the result were to make the sentences on charges 1, 2, 4 and 5 concurrent (a total of 3 years) and the sentence on charge 3 consecutive (1 year and 4 months) making a total of 4 years and 4 months.

R. v. Clark (1998) 2 Cr.App.Rep.137

14.In his reasons for sentence the judge referred to R. v. Clark and his sentences closely followed the guidelines laid down in that case which are applicable in Hong Kong.  Indeed Mr E.C. Mumford SC who appeared on behalf of the applicant agreed that the Clark guidelines are appropriate in this case.  R. v. Clark was a case in which an employee  abused his position of trust and stole large sums of money from his employer and from a charity.  The court set five financial bands, in pounds sterling, and set the appropriate range of sentence within each band.

15.The Clark bands and their HK$ equivalent at $12.5 to £1 (the approximate exchange rate at the material time) are as follows :

Band 1 –  over £1 million (HK$12.5 million) : 10 years’ imprisonment or more.

Band 2 –  between £250,000 (HK$3.125 million) and £1 million (HK$12.5 million) : 5 – 9 years’ imprisonment.  Count 1 comes within this band.  An application of Clark would therefore have resulted in a starting point of 5½ years.  In fact, 4½ years was adopted.

Band 3 –  between £100,000 (HK$1.25 million) and £250,000 (HK$3.125 million) : 3 – 4 years’ imprisonment.  Charges 2 and 5 came within this band.  On a strict application of Clark starting points of 3½ years and 4 years respectively would have been applied; which are precisely the sentences in fact adopted.

Band 4 –  between £17,500 (HK$220,000) and £100,000 (HK$1.25 million) : 2 – 3 years’ imprisonment.

Band 5 –  less than £17,500 (HK$220,000) : up to 21 months’ imprisonment.  Charges 3 and 4 fall within this band.  Charge 3 would therefore merit a sentence of 21 months (in fact 24 months was selected) and charge 4 considerably less (9 months was selected).

16.Thus, other than the fact that the judge’s sentence on charge 1 could be said to be on the low side and the sentence on charge 3 was 3 months higher than it would have been under Clark, no criticism can be made of the judge’s starting points.

17.More important however is the next stage in the sentencing process.  The overall picture and the question of totality had to be considered.

18.Nearly $10 million worth of jewellery was stolen.  Had the overall criminality been reflected by a single charge, and by applying the Clark guidelines, a starting point of at least 7½ years (for a sterling equivalent of £800,000) would have been appropriate.  The starting point taken by the judge of 6½ years was clearly a generous one.

Discount

19.Mr Mumford’s second ground is that a greater discount should have been given.  The argument is that there was considerable mitigation in the applicant’s favour but only her guilty plea was in fact taken into account when a discount of one-third was given.  He submits that if a more generous discount had been given it should have been applied to each of the five sentences first, then as a consequence the final sentence would have, and should have, been less.

20.We disagree.  We accept that there was indeed considerable mitigation in this case.  The applicant was a 61 years old lady with a positive good character who, together with her husband, had worked hard all her life running a successful business and bringing up a decent and successful family.  However, on a sensible reading of the judge’s reasons for sentence, it is plain that he had all such matters in mind at the time of sentencing.  We do not think that the discount of one-third to reflect all mitigating factors can be criticized.  Moreover, it should be noted that the discount was made from a generously low starting point.  In the result we cannot say that the overall sentence of 4 years and 4 months is either wrong in principle or manifestly excessive.

21.The mechanics which the judge employed to achieve the final sentence were perfectly proper.  The offences were committed on numerous different days over a seven months’ period.  He was therefore entitled to make some sentences consecutive to others, subject to the question of totality.  This is exactly what he did.  He made the sentence on charge 3 (1 year and 4 months) consecutive to charge 1 (3 years) which was ordered to run concurrently with the other three charges.

Future cases

22.The principles laid down in R. v. Clark remain applicable in Hong Kong.  However in order to avoid the unsatisfactory result of the bands changing with fluctuating exchange rates, we take this opportunity to convert the Clark bands into Hong Kong dollar bands to be adopted in future cases of a similar nature.  We set the following guidelines :

(a)	over $15 million —	10 years or more;
(b)	$3 million to $15 million —	5 to 9 years;
(c)	$1 million to $ 3 million —	3 to 4 years;
(d)	$250,000 to $1 million —	2 to 3 years;
(e)	less than $250,000 —	less than 2 years.

Ms Mary Sin, SADPP of the Department of Justice, for the Respondent

Mr E.C. Mumford, SC and Ms Valerie T.T. Lim, instructed by Messrs Jal N. Karbhari & Co., for the Applicant