HKSAR v. Cheung Mee Kiu

On 4 December 2006, the Court of Appeal (Ma CJHC and Burrell J) handed down reasons refusing an application for leave to appeal against sentence in HKSAR v Cheung Mee Kiu, CACC 99/2006. Ms Mary Sin, SADPP, appeared for the respondent; Mr E.C. Mumford SC (with Ms Valerie T.T. Lim of Messrs Jal N. Karbhari & Co.) acted for the unsuccessful applicant.

The applicant, aged 61 and of positive good character, had owned and managed the Moon Kee Jewellery Company for forty years, running two jewellery shops in Kowloon with her husband and one of her sons. The business collapsed in the late 1990s under the weight of regional economic downturn and the SARS epidemic. Between October 2002 and May 2003, in a misguided attempt to keep it afloat, she pawned hundreds of items entrusted to her by suppliers on a sale or return basis, pawned jewellery left by customers for repair, and ordered further stock from 26 suppliers paid for with post-dated cheques which were later dishonoured. All the items were pawned. The aggregate value of property disposed of was just under $10 million, of which roughly $2.95 million was recovered.

She pleaded guilty to five counts: conspiracy to steal (charge 1, $4.34 million from 20 suppliers), theft (charge 2, $2.28 million from 20 suppliers), theft (charge 3, $206,350 from repair customers), conspiracy to steal (charge 4, a single $24,000 diamond ring) and conspiracy to defraud (charge 5, $3.12 million). Deputy District Judge Yau imposed an aggregate sentence of 4 years 4 months, reached by making the charge 3 sentence (1 year 4 months) consecutive to charge 1 (3 years), with the other three charges concurrent. A one-third discount was applied to reflect mitigation including the guilty plea.

The ruling

The court refused leave. The Court held that: (1) the starting points fell within the bands in R v Clark (1998) 2 Cr App Rep 137, with charge 1 on the low side and charge 3 slightly above the Clark range but neither materially so (§15-16); (2) the one-third discount adequately captured the applicant's age, good character, working life and guilty plea, particularly as the 6½ year aggregate starting point was itself a generous one (§20); and (3) the consecutive/concurrent structure was proper, given the seven-month span of offending and the distinct nature of the charge 3 conduct (§21).

The court then took the opportunity to convert the Clark sterling bands into fixed Hong Kong dollar bands for future cases (§22): over $15 million (10+ years); $3-15 million (5-9 years); $1-3 million (3-4 years); $250,000-$1 million (2-3 years); under $250,000 (under 2 years). Practitioners sentencing in commercial dishonesty cases should now anchor submissions on these HK$ bands rather than on a sterling figure converted at whatever rate counsel prefers to adopt.