HKSAR v. Leong Mei Yong

HCMA 1103/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 1103 OF 2006

(ON APPEAL FROM ESCC 2012 OF 2006)

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BETWEEN

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Before: Hon Beeson J in Court

Date of Hearing: 20 March 2007

Date of Decision Handed Down: 28 March 2007

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D E C I S I O N

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1.The Appellant pleaded guilty in the Magistracy to one count of Using a Copy of a False Instrument, contrary to section 74 of the Crimes Ordinance, Cap. 200.  She was sentenced to 16 months’ imprisonment and appealed against that sentence. (A second, similar, count was ordered to be left on file, not to be proceeded with, without leave.)

GROUNDS OF APPEAL

2.The Perfected Grounds of Appeal were as follows;

(1)     The starting point of two years’ imprisonment adopted by the Magistrate was too high because the offence was not well planned; was a single incident unlikely to be repeated; involved a small amount of money and the victim did not suffer a pecuniary loss.

(2)     The Magistrate failed to give sufficient credit for the Appellant’s previous good character; medical history and excellent personal background as shown in the Probation Officer’s report and other documents.

(3)     In all the circumstances the sentence was too severe.

FACTS

3.The facts, the basis of the charge, admitted by the Appellant were as follows.

4.The Appellant, a solicitor, was a partner in a law firm which employed Tang Tat Wai (PW 1) as a litigation clerk from June 1994.  In November 2004 the firm told PW1 that he was dismissed and issued a cheque to settle his salary and his long service payment for the period 5 March 1999 to 8 December 2004.

5.PW1 challenged the amount of the long service payment, claiming he had begun working for the firm in 1994, rather than 1999.  The ensuing dispute could not be settled and PW1’s claim was fixed for hearing in the Labour Tribunal.

6.On 7 February 2005 the Appellant submitted a pile of so-called supporting documents to the Tribunal for a hearing the following day.  The Appellant submitted that PW1’s employment had been terminated in 1999 after he had taken a long, unapproved, absence and that he had been employed afresh.  The Labour Tribunal case was adjourned to 17 March 2005.

7.On that date the Appellant gave further documents, all of them photocopies, to an Assistant Tribunal Officer for submission to the Presiding Officer.  At the Tribunal hearing the Appellant gave evidence on affirmation stating that two letters, E2(1) and E2(2), had been sent to PW 1 to terminate his employment.  Those letters, as photocopies, were exhibited before the Tribunal.

8.In April 2005 PW 1 said he had never received the two letters which, purportedly, had been issued by the firm on 15 January 1999 and 19 January 1999.  Further, PW 1 pointed out that two Assistant Solicitors whose names appeared on the firm’s letterhead had been admitted as solicitors only in September 1999.  As one had been employed by the Appellant’s firm in September 1999 and the other in December 1999, the letters could not have been sent to him in January 1999.

MITIGATION

9.The Appellant was aged 55 years at the date of the offence.  She had been working as a solicitor in Hong Kong since 1983, when she was admitted as a solicitor.  Between 1998 and 2002 she was often out of Hong Kong because her mother was seriously ill in Malaysia.  Her mother died in 2002.

10.The Appellant ceased practice in 2005 because of the economic downturn.  The employees were laid off when the Appellant began to wind up the firm.  PW 1 was the only staff member to dispute his entitlement to long service pay.  The sum of the difference between PW 1’s claim and the amount he had been paid was about $63,000.

11.According to the Appellant she believed the content of the letters was true.  At the time the dispute arose she was no longer practising.  She said she had relied on what she was told by Ms Maggie Siu, an employee described as an administrator, about the dates of PW 1’s employment.  Ms Siu allegedly told her that the two letters had been sent to PW 1 when he was absent without leave; that the original copies had been lost and suggested creating the two false letters as evidence.  It was undisputed that the Appellant in her oral evidence under affirmation before the Tribunal had referred to the two letters as genuine.

12.In mitigation counsel submitted that the offence was not well planned; that the Appellant was bitterly remorseful; that she had a clear record; had pleaded guilty, was actively involved in charity work and unlikely to re-offend.  Counsel had to concede however that the Appellant was an experienced solicitor and an officer of the court, which were aggravating factors.

13.Appellant’s counsel suggested that she could be dealt with by way of a Community Service Order, (CSO), or a suspended sentence.  A background report was obtained, although the Magistrate warned that it implied no promise of a non-custodial sentence.

14.The information in the background report did no more than confirm the matters submitted by Appellant’s counsel to the Magistrate.

MAGISTRATE’S REASONS FOR SENTENCE

15.In considering the proper sentence the Magistrate started by assessing the offence as very serious, because the two letters were fabricated solely for the purpose of being used in legal proceedings.  It was wrong for anyone to fabricate documents and submit them to a court of law, but such an offence was even graver when committed by a solicitor, an officer of the court.

16.To make her transgression worse, the Appellant had tried to blame her administrator, Ms Siu, although she as a solicitor well knew the consequences of her actions and, obviously, should know better than any employee that her actions were deliberate and thoroughly dishonest.

17.To succeed in the Labour Tribunal proceedings the Appellant had to prove that PW 1 had been dismissed, as she claimed, between December 1998 and March 1999.  There were no documents to support this allegation and, knowing that, she deliberately fabricated documents to support and strengthen her claim.

18.The Magistrate was aware that although the $63,000 claimed by PW1 was not a huge sum, PW 1 was of much lower financial and professional standing than the Appellant.  For him the long service payment was very important, representing a substantial sum of hard-earned money.  The Appellant had used forged documents in a cynical, deliberate attempt to cheat PW1 out of all, or part of, the money to which he was entitled.

19.Medical reports were put before the Magistrate, one from a psychiatrist which indicated the Appellant was suffering from depression around June 2006 and the other more general medical report hinting that she may have been suffering symptoms of depression before her arrest.  The Magistrate noted that the Appellant had consulted a psychiatrist only some months after her arrest and that she had defaulted from treatment after three consultations.

20.When deciding the appropriate length of sentence the Magistrate took two years as her starting point, the highest sentence she could pass for this offence in the magistracy.  The maximum sentence is 14  years imprisonment.  The Magistrate expressed surprise that the Appellant was dealt with in the Magistracy given the serious nature of the offence; presumably that was a factor in her adopting the two-year starting point of which Mr McCoy SC complained in his first ground of appeal.

21.The Magistrate gave the Appellant full credit for her guilty plea by allowing a one-third discount; the final sentence was 16 months imprisonment.  She noted other matters of mitigation but apparently considered them insufficiently cogent to warrant any further discount.

22.The Magistrate did not find that the mitigating factors advanced by counsel, either singly or cumulatively, amounted to exceptional circumstances which would justify her suspending the sentence, or imposing a Community Service Order.  Given the circumstances she found that an immediate custodial sentence was appropriate.

23.Counsel put a number of cases before the court for consideration, most of which dealt with principles of sentencing for this,or similar, types of offence but there are no tariff sentences and it is difficult to discern guidelines from the cases relied on, other than those of a general nature.

CONSIDERATION OF APPEAL GROUNDS

24.The instant case is more serious than any of those referred to the Magistrate.  Here, a solicitor of 20 years’ experience, wholly ignored her responsibility as a solicitor and her duty as an officer of the court.  Although Mr Mccoy SC, who represented the Appellant on appeal, submitted there was a lack of planning of the offence, that was not the case – the forged document was created and presented, after consultation with Ms Siu, to an Assistant Tribunal Officer who was led to believe that the two letters were genuine supporting documents which should be passed to the Presiding officer for the purposes of the hearing.  The plan devised was intended to deceive the Presiding Officer into giving judgment in the Appellant’s favour, against her erstwhile employee, thus cheating that employee out of his due amount of long service pay.  Further, the Appellant, was prepared to and did, give evidence in court praying in aid the forged letters. 

25.As for the ‘remorse’ which was claimed on her behalf by Mr McCoy SC, it  is noteworthy that before the Magistrate the Appellant laid the blame for the plan and the faking of the letters on another, junior, employee in an attempt to avoid responsibility.  Mr McCoy SC repeated the allegation that the plan had been instigated by the firm’s “accountant”, presumably a reference to Ms Siu.  That militates against the existence of genuine remorse.  It cannot lie in the mouth of the Appellant to blame anyone else for this offence, particularly not a junior employee.

26.Mr McCoy SC, agreed that the conduct of the Appellant was deplorable, but submitted that she should be sentenced on the basis of the charge she faced, rather than charge(s) she could have faced, for example an attempt to pervert the course of justice, or perjury.  He repeated matters put before the Magistrate, pointing out that the other partner in the firm was a non-performing partner; that the firm made no profit in 2003 and 2004 and that the firm was in a professional mess, with papers and records misplaced or missing.  

27.While acknowledging that family concerns were not significant mitigation, Counsel referred to the Appellant’s care for her mother during her terminal illness; she had made 168 return trips to Malaysia between 1998 and 2004 – such absences hardly being conducive to a well-run business.  I note that the Appellant’s mother died in 2002, some 2-3 years before the date of the offence, so not all the trips referred to were for the purpose of visiting her mother.

28.Counsel referred to Appellant's having been an insomniac for 10 years and submitted that there was “evidence” she had been a long-term depressive.  Even if that were accurate, which it was not, it could not be relevant mitigation.  The material before the Magistrate indicated that the Appellant was showing signs of depression around the time of her plea and sentence.  As the Magistrate correctly commented, such depression was an entirely normal and explicable reaction given her predicament.

29.Certainly a psychiatric report put before the Magistrate referred to a collection of depressive symptoms, but as the Appellant defaulted on further consultations it was not evidence that was probative of the long-term depression claimed on her behalf. 

30.Counsel submitted that the offence occurred when the Appellant was not practising actively and so the offence was not committed in her role as a solicitor, but her role as an employer.  Such a distinction is specious and certainly not mitigatory, especially as the Appellant was quite prepared to rely on her professional standing when she filed forged letters and gave untrue evidence before the Tribunal.

31.Mr McCoy SC contrasted the Appellant’s position with that of the respondent, in Attorney General and Tai Chin-wah [1994]2 HKCLR 81.  Tai had pleaded guilty in the District Court to five charges involving the uttering and possession of forged documents and making  a false statutory declaration; the effect of the offences enabled him to gain admission to practice as a solicitor in Hong Kong, when he did not hold genuine qualifications.  He had been in practice as a solicitor for some 10 years before the deception was discovered.  His original sentence was six months imprisonment on each of the five charges, which sentences were ordered to run concurrently and were suspended for 12  months.

32.On Application for Review the Court of Appeal stated that the respondent’s conduct should be considered at the higher end of the sentencing bracket and imposed sentences of nine months imprisonment on each charge, all to be concurrent and  to be served immediately.

33.At pages 93 and 94 of the judgment Silke VP commented:

“His actions in misleading the Law Society, misleading the court - and he is, on admission as a solicitor, an office of the court - and misleading the public into their thinking that he was something which he was not, constituted offences of considerable gravity.  What the respondent did is at the higher end of the sentencing bracket, and by that we mean at the higher end of the sentences which could be imposed upon a person convicted of the offences which he faced.  We view all the charges laid against him as being intermingled one with the other and the sentencing judge was entitled to approach sentence on the basis of totality.  A proper overall starting point for sentence would have been, after trial, 18 months to two years immediate custodial imprisonment.  In arriving at the eventual sentence the plea is something which the judge must bear in mind.”

34.No new matters of mitigation were raised on this appeal.  The Magistrate was aware fully of the points made and by her sentence acknowledged that the only real mitigation was the Appellant’s guilty plea.  Her clear record and personal background were of little mitigatory weight.

35.This case differs from that of Tai Chin-wah (supra) – here the Appellant was an experienced practitioner and officer of the court, who used her position to deceive the court she had taken an oath to serve.  The Magistrate was entitled to adopt a starting point which ensured a sentence of general deterrent effect.  She was entitled also to reject parts of the mitigation that she did not accept as valid; certainly family and personal matters relating to concerns are of limited value in a case such as this.

36.Although much reliance was placed on the Appellant’s positive good character and her good works in the community, I note that they were performed in her capacity as a member and one-time President of the Lions’ Club.  Without in any way detracting from the very beneficial community and charitable works carried out by that, and similar organisations, it should be noted that the primary aim of such service clubs is to promote business fellowship and supportive connections amongst its members; community good works are a secondary aim.

CONCLUSION

37.I agree with the Magistrate that this is a very serious offence.  Offenders who trade on their good name, or their unblemished characters, or their professional status to increase their chances of achieving their criminal purpose can expect minimal sympathy from a court.  The public has a right to expect high standards of probity from those who are officers of the court.

38.If it had not been for the error of using the wrong letter-head it is likely that the Appellant would have succeeded in the Labour Tribunal proceedings, thus depriving PW1 of money that was rightfully his.  This offence was not discovered because the Appellant repented of her action and confessed.  Nor, from the mitigation advanced at plea, or the matters argued on appeal, was there any unequivocal shouldering of the blame by the Appellant, who continued to blame Ms Siu.

39.As for the reliance on ‘positive good character’ I note the comment of Stuart-Moore ACHJC in HKSAR v Leung Shuk-man [2002]3 HKC 424 @428:

‘Positive good character may well entitle a dependant to a slightly enhanced discount such as in the example of an offender who has worked without payment for a charitable cause within the community.’ 

40.Clearly that indicates such discount, if any, would not be great and it must be a matter within the discretion of the Magistrate, conditional on the matters relating to the particular offender.

41.Although the sentence is at the higher end of the spectrum, it was passed after careful consideration by the Magistrate who sentenced on the serious facts before her and who assessed the value of the mitigation advanced.

42.I cannot say that the sentence imposed by the Magistrate was excessive or wrong in principle.  This appeal against sentence is dismissed.

Mr Gerard McCoy, SC and Ms Patricia E Alva, instructed by C L Chow & Macksion Chan, for the Appellant

Ms Mickey Fung, GC, Department of Justice, for the Respondent