Secretary for Justice v. Buk Chui Ying

CAAR 4/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 4 OF 2007

(ON APPEAL FROM DCCC NO. 935 of 2006)

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Before:   Hon Stuart-Moore Ag CJHC, Beeson and Wright JJ

Dates of Hearing: 3 April 2008

Date of Judgment: 3 April 2008

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

Background

1.The respondent was charged with theft, contrary to section 9 of the Theft Ordinance, Cap. 210.  The particulars of the offence were that, between 29 November 2001 and 22 March 2002, she stole $5,037,915.04, the property of Ng Siu-hung (PW1), while she was “under an obligation to retain and deal in a particular way with certain monies she had received from or on account of Ng Siu-hung”.  On 23 May 2007, the respondent was convicted following a trial before Deputy District Judge Mierczak.  The judge then ordered a probation officer’s report and a suitability report for a community service order and, on 7 June 2007, the respondent was ordered to perform 240 hours of community service.

2.On 27 June 2007, leave was granted to the Secretary for Justice (the applicant) by the Chief Judge of the High Court to apply for the review of the sentence imposed on the respondent pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221.

The facts

3.In a brief account of the allegation against the respondent, the judge stated in his Reasons for Sentence that the respondent:

“… had been entrusted with this large sum of money from PW1, some $5 million-odd.
6.	PW1 had placed it with you, inter alia, clearly to prevent her husband from having a share of it, were there to be divorce proceedings.  I found you clearly knew that repayment had to be made on demand and it was never your money to do with what you wanted or let your husband use.
7.	In March 2002, PW1 had asked for the return of her money.  You admitted to PW1, and indeed PW2 that your husband had used the money.  It was clearly, I found, without the authority of PW1 and an IOU of sorts had been witnessed to that effect.”

4.This broadly outlines the case against the respondent but in slightly greater detail, as Mr David Leung has set out in his written submission on behalf of the applicant, PW1’s husband, who lived with PW1 in the Mainland, had suggested a divorce in October 2001.  PW1 then spoke to Mr Lau Chuk (Lau), whom she had known for approximately seven years, about finding a place of safety to put her money out of the reach of her husband.  Lau promised to look after the money and suggested that he should enlist his secretary (the respondent) to help.  As the respondent had been known to PW1 for two or three years, PW1 agreed to this arrangement.

5.On or about 20 November 2001, PW1 and the respondent went to the Hongkong Bank.  The respondent only had a company account with that bank and neither PW1 nor the respondent wanted to deposit money into that account.  PW1 withdrew approximately HK$5.14 million from her account and both of them then went to the Bank of East Asia nearby.  There, a safe deposit box was opened in the respondent’s name.

6.PW1 understood that $5 million was put into the safe deposit box and the remaining HK$140,000 was deposited into an account opened that day in the name of the respondent.  PW1’s instructions to the respondent were that the respondent should hold the money for PW1 which would be payable on PW1’s demand.  The respondent agreed to this arrangement.

7.In about March 2002, PW1 returned to Hong Kong and asked the respondent for the return of her money which she needed for medical expenses.  She had been suffering from cancer.  When asked by PW1 for the bank statements, the respondent showed PW1 a statement prepared and printed by herself.  PW1 felt suspicious.  Eventually, the respondent admitted to PW1 that she could return only HK$500,000 to PW1 as her husband had utilised the money to provide cash flow for his business.  The respondent took PW1 to the bank and paid her the sum of HK$500,000.

8.On 19 March 2002, a meeting was held between PW1, the respondent and PW2, a solicitor.  PW2 prepared a “Confirmation of arrears” signed by all three parties (Exhibit P13).  The document recorded amongst other things that the respondent was in debt to PW1; that a sum of HK$500,000 had been repaid; and that by 20 March 2002, the respondent would repay a further HK$2.5 million.  There were also references in this document to US$111,851.95 which similarly had been lodged with the respondent for safe keeping but this sum was eventually repaid and, in consequence, formed no part of the charge against the respondent.

9.On 20 March 2002, a further meeting was held between PW1, the respondent, Miss Lau Ling (an ex-colleague of PW1) and PW2.  PW2 prepared an “Undertaking of making repayment” dated 20 March 2002 (Exhibit P14) signed by PW1, the respondent, Miss Lau and PW2.  The respondent acknowledged that she was at this stage still in debt to PW1 in the sum of HK$2,037,915.04.  The respondent then undertook to repay the balance to PW1 by two instalments, HK$1 million on or before 30 March 2002 and the remainder of what was owed on or before 10 April 2002.  The safe deposit box account was closed on 22 March 2002.

10.On 6 April 2002, the respondent paid PW1 a further sum of HK$60,000.  After that, PW1 was unable to contact the respondent.  On 15 March 2003, PW1 reported the matter to the police.

11.As a result of the somewhat protracted investigation which followed, it transpired that the respondent had purchased a property at Flat C, 16/F, Block 1, Metro Harbour View, No. 8, Fuk Lee Street, Tai Kok Tsui, Kowloon, at HK$3.5 million on 28 December 2001 and sold it at HK$3,450,000 on 10 May 2005.  She also purchased a car parking space at the Metro Harbour View at HK$175,200 on 21 February 2002 which was sold for HK$190,000 on 5 January 2004 (Exhibits P15-18).

12.The judge was satisfied that the money PW1 placed with the respondent was to be repaid on demand and that the respondent had accepted she would hold the money on that condition.  By using the money for purposes of her own, the respondent had clearly appropriated the money.

13.After a payment of $60,000 on 6 April 2002, the sum of HK$1,977,915.04 still remained outstanding.

The application

14.Mr Leung submitted that bearing in mind the large sum of money which PW1 had entrusted to the respondent, ultimately leaving PW1 with a loss of nearly $2 million, the sentence imposed by the judge was manifestly inadequate. Mr Leung contended that this case was not unlike the situation to be found in HKSAR v Au Wing-kun, CACC 391/2006 where this court, giving judgment on 22 June 2007, said:

“5.	The applicant, in short, had been entrusted with $1.265 million which had been given to him by PWs 1-4 for the agreed purpose of acquiring stocks and shares on their behalf.  However, he simply used the money for his own purposes.  When he was unable to repay the victims, a report was made to the police.
6.	In our opinion this was not strictly a ‘breach of trust’ case.  The applicant was not acting in any professional capacity as an investment agent for the victims as, for example, a banker or recognised broker would have been if performing the same task.  The applicant had befriended his victims and was, in reality, no more than a conman practised in the art of deceit.  Having said this, we do not regard this as a distinction of any real significance in the present circumstances.”

The appellant in that case, who had pleaded guilty, had been sentenced to a total of 2½ years’ imprisonment which was reduced on appeal to 2 years.

15.In the present case, whilst of course the actions of PW1 were far from honourable, part of the background was that PW1, to the respondent’s knowledge, was suffering from poor health and had two children to look after.  When her friend, Lau, had said that he would often be unavailable due to his business commitments and the respondent had agreed to help, it follows that she was prepared to take advantage of PW1 at a time when PW1 was particularly vulnerable.

16.With all these circumstances in mind and accepting that the case was not strictly a ‘breach of trust’ offence as described in R v Barrick [1985] 81 Cr App R 78 at 81, Mr Leung argued that if there was, in the words of Au Wing-kun’s appeal, no distinction “of any real significance” to take this out of the general sentencing range for true breach of trust cases then the appropriate sentence after trial, as set out in R v Clark [1998] 2 Cr App R 137 and applied in HKSAR v Cheung Mee-kiu [2006] 4 HKLRD 778 was between 5 and 9 years’ imprisonment for sums of between $3 million and $15 million.

17.There were three individual factors which Mr Leung accepted would have a bearing on the outcome of these proceedings which, collectively, were highly significant.

18.The first of these factors was the respondent’s repayment of about $3 million after PW1 had pressed her to do so.

19.Secondly, there was a lengthy delay in bringing this prosecution to a conclusion.  In short, the respondent was first interviewed on 11 August 2003 when she opted to remain silent.  She was then released pending further enquiries and, on 11 December 2003, the file was sent to the Department of Justice for legal advice.  PW1 was then in Beijing at which time it seems that she was far from well.  She was unable to indicate when she would be fit enough to return to Hong Kong.  On 27 April 2005, by which time a further statement had been obtained from PW1, further legal advice was sought from the Department of Justice.  When police contacted PW1 in November 2005, it emerged that she had just had an operation and did not wish to deal with this matter at that time.  Communication was maintained thereafter through PW1’s solicitors and PW1 made a further statement in March 2006.  By this stage, police were unable to find the respondent who was put on a ‘wanted’ list.  Eventually, the respondent was arrested at Lo Wu on 30 September 2006 as she was attempting to leave Hong Kong.

20.Although the delay between August 2003 and March 2006 was not the fault of PW1 who was obviously suffering serious ill-health, equally none of the blame for that portion of the delay lay with the respondent.  In this regard, Mr Leung suggested that some guidance in the approach to this delay could be derived from Secretary for Justice v Chan Boon-ning, CAAR 1/2002 where this court was dealing with an “unreasonable delay of at least two years” on the part of the prosecution.  In the event, a starting point of 9 years taken in that case was reduced by a full year.

21.The third factor was that the respondent has completed the full 240 hours of community service she was ordered to undertake.

Was community service appropriate?

22.When considering the appropriateness of the sentence imposed by the judge, it is necessary to consider a variety of matters.  At the forefront of these, the offence committed by the respondent was the theft of over $5 million.  Although she eventually repaid about 60 per cent of this sum, she then disappeared after she had agreed to pay the balance by instalments.  The balance of $1,977,915.04 remains outstanding and Mr Leung has intimated that it is not likely to be repaid.  Indeed, there is no issue about this aspect of the case.

23.Next, we note, in both the probation report and the community service suitability report, that the respondent described her actions as being “foolishness” on her part.  However, having regard to her utilisation of the money to buy a property within weeks of being entrusted with the money, we believe that she acted out of sheer greed, probably hoping to see a rapid increase in the value of the property (and later the car parking space) she had purchased.

24.Lastly, in considering whether the imposition of community service was an appropriate method of disposal, it must be remembered that the respondent has shown no genuine remorse.  Whilst the reports prepared prior to sentence appear to indicate a measure of acceptance on the respondent’s part that she had acted dishonestly, subsequently she went on to make an affirmation in support of an application for leave to appeal against her conviction out of time.  In a separate judgment (CACC 223/2007), we have dismissed this application.  As this court has so often said, it is unlikely that a community service order will ever be appropriate unless remorse has been shown (see: Secretary for Justice v Ting Kong-ho CAAR 9/2000, paragraphs 11-12; HKSAR v Li Shui-keung HCMA 150/2002, paragraph 30; Secretary for Justice v HKL and Anor [2004] 3 HKLRD 235, paragraphs 11-12; Secretary for Justice v Choi Shuk-kan [2007] 3 HKLRD 421, headnote translation; Secretary for Justice v Law Tat-leung and Anor, CAAR 3/2007, paragraph 17).

25.In our opinion, there was, in any event, no need to look beyond the gravity of the offence to see that community service was never an option in this case.  The only mitigating features were those to which Mr Leung had referred.  These were endorsed by Mr Bruce SC who, together with Mr Hylas Chung, also represented the respondent in the 7-day trial proceedings in the court below (8 days including sentence).

Conclusion

26.We have no hesitation in concluding that a sentence of imprisonment was the only proper method of disposal for a case of this gravity.  We consider, in the light of all the circumstances we have outlined, that an appropriate starting point would have been 4 years’ imprisonment.  Taking into account the delay, the sum repaid and the fact that 240 hours of community service have been completed by the respondent, we shall reduce the starting point by 9 months, 6 months and 6 months, respectively, leaving a sentence of 2 years and 3 months’ imprisonment.  In addition, bearing in mind the nature of these proceedings, and particularly that the respondent will now have to serve a term of imprisonment having been given false hope in the earlier proceedings that she would not have to do so, we shall further reduce the sentence by 3 months.

27.In the result, this application succeeds.  The sentence of community service is quashed and in substitution, pursuant to section 81B of the Criminal Procedure Ordinance, there will be a sentence of 2 years’ imprisonment.

Mr Andrew Bruce, SC, Mr Hylas Chung and Mr Felix Hoe, instructed by Messrs Massie & Clement, for the Respondent.

Mr David Leung, SGC, of the Department of Justice, for the Applicant.