HKSAR v. Tam Po Kon

CACC000600/1999

CACC 600/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 600 OF 1999

(ON APPEAL FROM DCCC 857/1999)

__________________

_______________

Coram: Hon Stuart-Moore CJHC (Ag), Mayo VP and Leong JA in Court

Date of Hearing: 3 February 2000

Date of Judgment: 3 February 2000

______________

J U D G M E N T

______________

Leong JA (giving the judgment of the Court):

1. On 12 November 1999 the applicant pleaded guilty in the District Court before Judge de Souza to one charge of obtaining pecuniary advantage by deception and five charges of possession of false instruments. The first charge relates to him using false academic certificates to obtain employment. The second to the sixth charges relate to him using cheques he stole to pay his employer's clients. He was sentenced to 12 months imprisonment on the first charge and 8 months imprisonment concurrent on each of the other five charges but consecutive to the sentence on the first charge, making a total of 20 months imprisonment. He now seeks leave to appeal against sentence.

2. The facts admitted by the applicant show that in July 1998, he applied for the post of sales manager in a company in answer to an advertisement. At the interview, the applicant produced a bachelor degree certificate and a graduate certificate which purported to be certificates issued by the Chinese University of Hong Kong. Both are in fact false certificates. On the strength of these false certificates, the applicant obtained the post. In the course of his employment, he obtained the cheque book of his girl friend and printed on the cheques the name of his employer company. He used these cheques to make payments for service contracts between his employer company and the various advertising agencies because he wanted to conclude the deals for his employer company more quickly. Without approval from a company director, he had no authority to issue cheques for his employer company and to use them as he did.

3. The applicant had a long history of dishonesty. He has a series of convictions for theft and obtaining by deception since 1979, the last being in April 1993. The probation report called for by the Judge revealed that the applicant had not been getting on well with his father and his wife and children had left him. He had personality problems and these probably led him into committing these offences.

4. In sentencing the applicant, the Judge said that it was the applicant's stupidity that he sought employment with false certificates. The Judge took into consideration that the applicant had worked for his employer company to earn the salary he obtained and the company had suffered no loss. The Judge referred to the case of AG v TAI Chin-wah [1993] 1 HKC 1 where the Court of Appeal on review of sentence held that for offences relating to the uttering and possession of forged documents and the making of a false declaration to enable the offender to obtain a professional qualification and to practise in a professional capacity in Hong Kong, the proper overall starting point after trial would be from 18 months to 2 years immediate imprisonment. The Judge therefore adopted a starting point of 18 months for the first charge and 12 months for each of the remaining charges. Scaling down one third for the applicant's plea, he arrived at the sentences he had imposed.

5. The applicant submitted in his first ground of appeal that all seven charges occurred in the same case and the sentences should all be concurrent.

6. This is not correct. The first charge relates to what he did on 11 July 1998 at his interview when he sought to obtain employment. The other charges relate to what he did during his employment. These are separate and distinct offences and the Judge was entitled to impose the sentences in the consecutive manner as he did.

7. In his second and third grounds, the applicant said that his employer company suffered no loss neither did the other companies mentioned in the remaining five charges. He also said that the cheques did not lead to him gaining any advantages. He further said that he had admitted the offences at first instance and confessed everything which showed that he was repentant.

8. The Judge had in his Reasons for Sentence mentioned all these factors and he had taken all these into consideration when he considered the appropriate sentence.

9. In his last two grounds, the applicant said that he was suffering from illness and he was remorseful and he asked for a reduction on humanitarian grounds.

10. In a letter he produced to the court this morning, he expressed once again his profound remorse and his repentance since his imprisonment and he asked for this court's compassion so that he could live a new life. For that purpose, he asked this court to order the terms of imprisonment to run concurrently.

11. In our view, the circumstances of TAI Chin-wah are very much different and far more serious than the circumstances in the present case. The applicant had used the forged cheques to enhance his employer's business out of which he desired little benefit. This was most unusual and it is difficult to see why he did so. Nevertheless, having regard to the fact that all the companies concerned had suffered no loss as a result of his conduct, we think the overall sentence of 20 months imprisonment would in these circumstances be manifestly excessive.

12. In our view a sentence of 12 months imprisonment overall would do justice in the circumstances and this may be achieved by ordering all the sentences to run concurrently. We would add that this is a unique case and is unlikely to provide any guidance to other cases involving similar charges in future. We grant the application for leave to appeal against sentence and we allow the appeal to this extent by ordering all the sentences to run concurrently.

Representation:

Mr Cheung Wai-sun, DPGC of the Department of Justice, for the respondent

Tam Po-kon, applicant in person