HKSAR v. Tam Yu Kai

[English Translation – 英譯本]
HCMA 86/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 86 OF 2007

(ON APPEAL FROM TWCC NO. 3205 OF 2006)

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Before: Hon Barnes J in Court

Date of Hearing: 31 July 2007

Date of Judgment: 31 July 2007

Date of handing down Reasons for Judgment: 2 August 2007

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REASONS FOR JUDGMENT

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Background

1.The Appellant was charged with one count of “attempting to obtain pecuniary advantage by deception”, contrary to section 18(1) of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong and section 159G of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong.

1.         On 8 December 2006, the Appellant pleaded guilty before Acting Principal Magistrate Lee. After the Appellant admitted the facts, Magistrate Lee convicted the Appellant and adjourned the case to 3 January 2007 for the purpose of obtaining probation reports and community service reports.  The Appellant was granted bail on the same conditions.

2.On 3 January 2007, the case was heard by Magistrate Glass. The Appellant confirmed to Magistrate Glass that he had already pleaded guilty and agreed to the facts. Having heard mitigation submissions, Magistrate Glass sentenced the Appellant to 4 months’ imprisonment.

3.The Appellant appealed against sentence.  After the hearing, I allowed the appeal, set aside the sentence and replaced it with 180 hours of community service.  I now set out the reasons for my judgment.

Admitted facts

4.The facts are simple.  The Appellant lived with his elder brother.  Due to financial difficulties, he used his brother’s identity card, credit card and bank statements as salary proof and applied for a personal loan of $100,000 from Citifinancial.  Staff of the financial institution found that the Appellant did not look the same as the photo on the identity card and that the monthly statements appeared to have been altered.  The staff called the police and the Appellant was arrested.  The Appellant admitted to the offence.

Ground of appeal

5.The ground of appeal advanced by Mr Suen, Counsel for the Appellant, is that the Magistrate erred in ruling that a community service order was inappropriate for the Appellant.  It was submitted that a non-custodial sentence was appropriate in all the circumstances.

6.Mr Suen specifically mentioned that in sentencing, Magistrate Glass said that the Magistrate who first heard the case (i.e. Magistrate Lee) had certainly warned the Appellant when seeking the reports that any kind of sentence was possible. Mr Suen submitted that Magistrate Glass had erred because Mr Lee had not so warned the Appellant.  Mr Suen claimed that, by obtaining the reports and granting bail to the Appellant pending sentence, Magistrate Lee was apparently leaving room for sentencing the Appellant to community service if appropriate.

7.Mr Suen cited R v Wong Chi Tak,HCMA 523/1996 and HKSAR v Lau Kin Yu, HCMA 391/2002 and submitted that the present case was different from those two cases as the Appellant had not obtained any advantage and the circumstances of the present case were less serious than those of the other cases.

8.Mr Suen contended that the Appellant merely did a stupid act, the offence was a one-off incident, the Appellant had a good background and the chances of his committing the offence again were slim.  As the Appellant had pleaded guilty, he should in all the circumstances be given a chance to rehabilitate and a non-custodial sentence.

Respondent’s reply

9.Ms Tsang, Government Counsel for the Respondent, cited HKSAR v Chong Siu Ping, HCMA 1221/2002 which confirmed that a community service order was inappropriate for offences involving dishonest applications for loans.  She submitted that the facts of the present case were more serious than those of Chong Siu Ping and a sentence of 4 months’ imprisonment was neither wrong in principle nor manifestly excessive.

Judgment

10.There are no sentencing guidelines for the offence of “attempting to obtain pecuniary advantage by deception”.  As there are many ways of obtaining or attempting to obtain pecuniary advantage by deception, it is very difficult to formulate general guidelines.  In sentencing, the court has to consider the actual circumstances of the particular case.  Cases decided on different facts are of limited assistance.

11.The Chong Siu Ping case which Ms Tsang cited was an appeal case heard before me.  In that case, the appellant applied to 3 financial institutions within two days for loans of $30,000, $10,000 and $70,000 respectively.  All the applications were approved.  At the time of the application, he concealed his indebtedness and falsely claimed that he was not indebted apart from one outstanding credit card debt, for which he only had to repay $740 per day.

12.One month after obtaining the loan, the appellant filed a petition for bankruptcy, with his indebtedness totalling $585,000.  The appellant was 33 years old, married and a first offender.  In considering a community service order, I said:

34.     … In the present case, there is no doubt that the Appellant has completely satisfied all the six requirements set out in Brown and Wong Yiu Kuen.  What I need to consider is whether the charge and facts of the case can be appropriately dealt with by way of a community service order.  ‘Deception’ cases vary widely in type and extent, and therefore no generalization is possible.  Judging from the facts of this case, on 25 and 26 May 2002, the Appellant time after time deceived various financial institutions.  The Principal Magistrate has in paragraph 9 of his Reasons for Sentence correctly stated that ‘similar cases are getting more and more prevalent.  The court has a duty to convey to the public a clear message that persons who commit similar acts of deception will be severely punished.’

35.     Although a community service order cannot be considered a light sentence, it may be regarded as lenient when compared to a custodial sentence.  As the court has to convey the abovementioned clear message to the public for this kind of cases in order to serve deterrence purposes, I hold that a community service order is not an appropriate sentence to be considered in this case.  The Principal Magistrate’s failure to consider a community service order did not constitute an error in principle.

I allowed the appeal and suspended the sentence for “special reasons”.

13.Although I stated in the paragraph 35 quoted above that there is a need to convey a clear message to the public and held that a community service order was inappropriate, I do not intend to lay down a rule for a blanket prohibition against imposing a community service order for all offences involving deception on banks or financial institutions.  I reiterate that the appropriate sentence must depend on the facts of each particular case.

14.The Appellant in the present case is 29 years old and single.  He has received tertiary education and has a clear record.  He admitted the offence upon being arrested and pleaded guilty at his first presence in the court.  When Magistrate Lee was seeking the relevant reports, he did not indicate that an immediate custodial sentence would be considered.  In addition, he took the initiative to ask for a probation report.  The fact that he granted the Appellant bail on the same terms pending sentence might indeed have led the Appellant to “think” that if it was appropriate for him to perform unpaid service for the community, the court would sentence accordingly.

15.As I understand it, if a magistrate does not discard the possibility of imposing a sentence other than a probation order or a community service order, he will so inform the defendant when obtaining the reports.  Magistrate Lee did not do so, and Magistrate Glass wrongly “thought” that Magistrate Lee had already informed the Appellant of other sentencing options.  That the Appellant feels aggrieved for being unfairly treated is understandable.

16.There is no doubt that the Appellant has fulfilled all the 6 requirements set out in R v Brown (1981) 3 CAR(S) 294 and HKSAR v Wong Yiu Kuen [2001] 1 HKC 486.  The probation officer made very positive comments on the Appellant and considered a community service order appropriate with a recommended length of 80 to 120 hours.  The Appellant committed this offence due to his $12,880 debt.  His family has forgiven him and is willing to support him.  His offence can be regarded as a serious one, but fortunately the vigilance of the staff prevented the bank from suffering any loss.  The Appellant’s conduct was the result of his mind going astray for a moment.  In all the circumstances, I am of the view that performing unpaid community service will serve the dual purposes of punishing the Appellant and allowing him to make up for his wrong by serving our society.

17.As for the length of the period of community service, the 80 to 120 hours recommended by the probation officer is in my view too short.  The appropriate length should be 180 hours.

18.For the reasons above, the appeal is allowed.  The sentence is set aside and replaced with a 180-hour community service order.

Ms Olivia Tsang, Government Counsel, for the HKSAR.

Mr Suen Kam Hee, instructed by Legal Aid Department, for the Defendant.

Translated by Mr. Edmund Cham, Solicitor.