HKSAR v. Ng Wing Hoi

[English Translation - 英譯本]
HCMA 705/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 705 OF 2011

(ON APPEAL FROM KTCC4298 OF 2011)

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Before: Hon Barnes J in Court

Date of Hearing: 1 March 2012

Date of Judgment: 1 March 2012

Date of Reasons for Judgment: 5 March 2012

REASONS FOR JUDGMENT

1.The appellant faced a single count of fraud, contrary to s.16A(1)(a) of the Theft Ordinance, Cap. 210, Laws of Hong Kong.  The particulars of the offence were that, between 10 September 2007 and 31 July 2008 (both dates inclusive), in Hong Kong, by deceit, namely by falsely representing to the Social Welfare Department (“SWD”) that:

(1) the information he supplied to SWD in his application for Comprehensive Social Security Allowance (“CSSA”) was true, complete and accurate; and

(2) he had no assets other than those reported to SWD,

and with intent to defraud, the appellant induced SWD to commit an act, namely to grant or continue to grant him CSSA in the total sum of HK$37,814 which resulted in benefit to himself or prejudice or a substantial risk of prejudice to SWD.

2.The appellant pleaded not guilty.  He was convicted of the offence after trial and was sentenced to 9 months’ imprisonment to run consecutively to a term of imprisonment that he was serving.

3.The appellant appealed against conviction and sentence.

4.At the conclusion of the hearing, I dismissed the appeal against conviction, but allowed the appeal against sentence, set aside the sentence of 9 months’ imprisonment and substituted therefor a sentence of 7 months’ imprisonment which was to run consecutively to the term of 7 years and 4 months that the appellant was serving.  My reasons for judgment are set out below.

Prosecution case

5.The prosecution case was admitted as facts under s.65C of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong.  In other words, the defence accepted and agreed with the prosecution case in its entirety.

6.The facts of the case were that starting from 8 April 1999 the appellant received CSSA on the ground of unemployment.  On 10 September 2007, the appellant successfully claimed against his ex-wife for a property worth $1,100,000.  The value of his assets had since exceeded the $34,000 asset limit for CSSA applicants, and hence he was no longer entitled to CSSA.

7.On 22 October 2007, the appellant visited the office of SWD and signed a “review form” requesting a change of his bank account information.  He did not disclose in the form that he had obtained the said property.

8.On 30 November 2007, the appellant sold the said property for $1,100,000.

9.The appellant had never reported to SWD that he had obtained other property.  Instead, he continued to receive CSSA until early August 2008 when SWD found out that he had had other property.

10.Between 10 September 2007 and 31 July 2008, the appellant received overpayments of CSSA in the total sum of $37,814. 

Defence case

11.The appellant gave evidence that after obtaining the said property, he intended to sell it to pay off all his debts and therefore forgot to report it to SWD.  The appellant also said that he was fully aware that he would not be entitled to further CSSA if he obtained the property.  Moreover, prior to his obtaining the property, the appellant had inquired of SWD staff about what he should do to stop receiving CSSA in the event that he obtained the property.

Grounds of appeal against conviction and sentence

12.The appellant’s written grounds of appeal can be summarized as follows:

(1)  The magistrate failed to carefully consider the defence, especially that the appellant’s medical condition was such that he was often forgetful;

(2)  Counsel for the appellant had failed to draw to the magistrate’s attention the fact that the appellant had offered to SWD staff a proposal of making full repayment to SWD, but had not received any instruction or reply, and the appellant suffered injustice as a result of Counsel’s said failure;

(3)  The magistrate did not call for a background report before sentencing; and

(4)  The magistrate, in determining sentence, failed to take into account a delay of three years in prosecuting the present case.  Nor did the magistrate reduce the sentence on account of the appellant’s age and infirmities.

13.Before me, the appellant stressed time and again that he had simply forgotten to tell SWD, and also reiterated his written grounds of appeal.

Discussion (conviction)

14.A magistracy appeal is conducted by way of rehearing on the basis of the testimony and evidence before the trial magistrate (and also any fresh evidence which the appellate court may admit): Chou Shih Bin v. HKSAR[1]. In my view, as far as factual issues are concerned, the appellate court has to bear in mind that the trial magistrate enjoyed the advantage of hearing and seeing the testifying witnesses and the appellate court cannot rely on the transcripts to conclude whether the witnesses were credible and reliable: Raymond Chen v HKSAR[2]. It was entirely for the trial magistrate to decide whether a witness was credible and reliable. However, where a finding of fact made by the trial magistrate was unreasonable, irrational or inherently improbable, or where, in dealing with the evidence, the trial magistrate misquoted, omitted or failed to consider or analyse material matters, the conviction would be rendered unsafe.

15.Having read the magistrate’s Statement of Findings, I note that the magistrate was well aware that the prosecution bore the burden of proving the appellant’s guilt beyond reasonable doubt.

16.The magistrate, having carefully considered and analysed the appellant’s evidence, found what he said incredible.  The magistrate was the arbiter of facts, and there was nothing wrong with his finding of facts.  The conviction was not unsafe.

17.I dismiss the appeal against conviction.

Appellant’s submissions on background and mitigation

18.The appellant, aged 70, is a divorcee and has lost contact with his only son.  He is not a first offender.  Prior to his receiving a term of 9 months’ imprisonment for the present case, he had 27 convictions – mostly related to dangerous drugs – arising out of a total of 38 charges.  His most recent conviction was for trafficking in dangerous drugs, for which he was sentenced on 31 May 2011 to imprisonment for 7 years and 4 months.  

19.The defence submitted that the appellant had heart disease, diabetes and hypertension.  The appellant had no means to repay the amount involved and asked for a lenient sentence.

The magistrate’s reasons for sentence

20.The magistrate took the view that this was a case of blatant fraud on public funds and that the appellant had not shown any remorse.  Therefore, in light of the facts of the case, the magistrate considered an immediate custodial sentence necessary and adopted 9 months as the starting point.  In the absence of mitigating factors, the appellant was sentenced to 9 months’ imprisonment, to run consecutively to the term of 7 years and 4 months that he was serving.

Sentencing principles

21.In Leung Wai Kei[3], the Court of Appeal set forth the following sentencing principles in respect of fraud of this kind (at para. 46):

“…

(1) The court should first consider whether a custodial sentence is necessary;

(2) If a custodial sentence is appropriate, the court may consider imposing a community service order in lieu of imprisonment or suspending the sentence;

(3) In cases involving some intentional and persistent fraud, an immediate custodial sentence is justified.

…”

22.According to the Court of Appeal, for cases in which an immediate custodial sentence is considered appropriate, where a defendant did not plead guilty and the amount involved is less than $50,000, the term of immediate custodial sentence should be less than 9 months (at para. 47).

23.In Leung Wai Kei, the Court of Appeal also expressed the following views on the severity of sentences and whether an immediate custodial sentence was warranted:

“27. We agree that the CSSA Scheme is intended to help those in genuine need of assistance. Our society does not tolerate any act of defrauding public funds by dishonest means. However, we do not endorse the view that an immediate custodial sentence should be imposed on each and every person guilty of defrauding public funds. Each case presents its own facts and each defendant has his own circumstances, and it would go against sentencing principles to lay down a hard-and-fast rule of adopting immediate imprisonment as a starting point. The following factors should be considered in determining whether a severe sentence is to be imposed:

(1) whether the defendant pleaded guilty;

(2) the amount involved and the length of time over which the offence was committed. It should be noted that, even where a huge total amount is involved, this may be an accumulation of small amounts received by the applicant per week/per month;

(3) the circumstances leading to the offence. There is an obvious difference between a legitimate claim which became false due to a change of circumstances and a claim which was false from its inception;

(4) the purpose for which the money has been used: using the money for providing household necessities will more readily attract the court’s sympathy than spending the money on luxuries;

(5) the defendant’s character and previous records;

(6) circumstances specific to the defendant, such as illness, disability, family difficulties, etc; and

(7) whether the defendant has voluntarily repaid, in whole or in part, the amount that has been overpaid to him.”

Discussion

24.Bearing in mind the “views” above, it can be seen, with respect to the appellant, that:

(1) he pleaded not guilty to the offence (although he entirely agreed with the prosecution case).

(2) the offence was committed over a period of 10 months and the $37,814 involved was not a substantial amount.

(3) the appellant’s claim was initially legitimate but subsequently became a false one.

(4) there is no information as to whether the money was spent on household necessities; however, I am prepared to assume that the appellant spent the money on household necessities.

(5) while the appellant has quite a number of convictions and was serving another term of imprisonment (for as long as 7 years and 4 months) at the time of sentencing, he has no previous conviction for similar offences.

(6) the appellant is advanced in years (70 years old) and suffering from senile diseases (such as heart disease, hypertension and diabetes).

(7) the appellant has not repaid the amount despite his claim that he was willing to do so; instead, during mitigation he submitted through Counsel that he was unable to make repayment.

25.Given the above circumstances, in particular that the appellant is serving a term of imprisonment, an immediate custodial sentence is not only appropriate, but also inevitable.  It is not improper for the magistrate not to call for a background report before sentencing.  In the present case there is simply no room for imposing a non-custodial sentence.

26.The amount of $37,814 obtained by the appellant was below $50,000, and following the guidelines laid down by the Court of Appeal in Leung Wai Kei, the term of imprisonment should be less than 9 months.  In my view, in all the circumstances of the present case, the starting point should be 7½ months.

27.The offence was committed between 2007 and 2008, but the trial did not take place until 18 August and 27 September 2011.  It can therefore be seen that there had been a delay in the case.  I was told by the respondent that SWD learnt of the matter in August 2008 and launched an investigation (the subject of which included the appellant’s ex-wife).   The investigation took some time, and only in August 2011 was the charge formally laid.

28.It is true that delay in itself does not entitle the appellant to a discount in sentence.  As the Court of Appeal said in Ma Kim Hung[4] (at para. 21):

“21. … We agree with Mr. Tam that a delay in bringing a prosecution (whether justifiable or not) does not in itself entitle an accused to a discount in sentence; the seriousness of a crime does not diminish with the passage of time.”

The Court of Appeal continued (at para. 22):

“22. The principles in which delay may be a factor in an accused’s mitigation appear clear. In AG v. Lo Ching-fai [1997] 2 HKC 651, it was said that if an accused has faced many years of strain since his arrest, this may have an impact on his sentence. Delay on which an accused may be able to place reliance includes the delay between the beginning of the investigation and the trial, see: R v. William Hung [1994] 1 HKCLR 47. However, if the accused is at fault for the delay occasioned by the length of the investigation, then he cannot rely on it, see: R v. Hui Hing-kong CA 722 of 1995 (unreported).”

The tenor is that years of delay after arrest in bringing the case to trial, as a result of which the accused suffered great mental strain, can constitute a mitigating factor, except where such delay was brought about by the accused.

29.In Ma Kim Hung, by reason of the delay in prosecuting the case, the Court of Appeal gave a discount in sentence to an appellant who had pleaded guilty at an early stage and fully repaid the sum involved.

30.In the present case, although the appellant had not pleaded guilty, he entirely agreed with the prosecution case, which to some extent had saved the court’s time.  Whilst the appellant has not made repayment to SWD, he did suffer from distress during the period of two to three years between investigation and trial.  I can exercise my discretion to give the appellant a discount of ½ month.

31.The appellant pleaded not guilty and is therefore not entitled to the usual one-third discount. The appellant’s senility and ill health are not mitigating factors.  The appropriate term of imprisonment should be 7 months.

32.The appellant was serving a prison term of as long as 7 years and 4 months at the time of sentencing.  Nonetheless, bearing in mind that the nature of the present case was completely different from that of the offence of trafficking in dangerous drugs, and having regard to the totality principle, I take the view that the sentence of 7 months in the present case should be ordered to run entirely consecutively to the term of 7 years and 4 months that the appellant is serving.

Miss Hermina Ng, Acting Senior Public Prosecutor of the Department of Justice, for the Respondent.

Appellant in person, present.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.