IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
APPLICATION FOR REVIEW NO. 7 OF 1998
(ON APPEAL FROM DCCC 11/98, 81/98 AND 1216/97 (CONSOLIDATED))
Coram: Hon. Stuart-Moore, V.-P., Mayo, and Leong, JJ.A. in Court
Date of hearing: 3 June 1999
Date of delivery of judgment: 24 June 1999
J U D G M E N T
Mayo J.A. (giving the judgment of the Court):
1. This application is made by the Secretary for Justice to review the sentences imposed on this respondent by Judge Line in the DistrictCourt.
2. The respondent was convicted of 9 charges of theft, contrary to s. 9 of the Theft Ordinance, Cap. 210. The Judge sentenced the respondent to 3 years imprisonment on all the charges and ordered that all the sentences be servedconcurrently. It is the contention of the Secretary for Justice that these sentences were wrong in principle and or manifestly inadequate.
3. For the purposes of this application the facts can be stated quite simply.
4. The respondent held a position of trust in the Tin Lok Baptist Church. A limited liability company was formed in 1983 Tin Lok BaptistChurch Ltd. (TLBC Ltd.) for the management of the church’s property and finance. The respondent was a Director of TLBC Ltd. and assumeda prominent role in the company’s affairs.
5. The respondent had contributed to the church’s finances while his own separate business interests prospered. However when his businessinterests faltered he withdrew moneys from the church. The amounts he withdrew were far in excess of the amounts he contributed.The way he did this was to mortgage property owned by TLBC Ltd. and apply part or all of the proceeds thereof for his own benefit.The total amount involved was $2,976,661.00. The period covered by the charges was from June 1993 to January 1996.
6. When passing sentence the Judge said:
7. The main complaint made by the Secretary for Justice is that the total sentence imposed did not reflect the assessment the Judgehad made of the respondent’s criminality.
8. Mr. Reading, S.C. for the applicant called in aid the principles laid down in R. v. Barrick  81 CR. APP. R. 78 and R. v. Trevor Clark  2 CR. APP. R. 137. In simple terms it could be said that Clark is an attempt to take cognisance of inflationary values since Barrick which was heard in 1985 so as to ensure that the monetary factors which are weighed in determining an appropriate sentence are keptin line.
9. There is however one further complication. Since 1985 in the U.K. the maximum sentence for theft has been reduced from 10 years to7 years. So far as serious cases are concerned the only way in which sentences in excess of 7 years imprisonment can be imposed isif there is more than one charge and an order is made to make one of the sentences either wholly or partly consecutive.
10. In Hong Kong the maximum sentence which can be imposed for theft is still 10 years so this type of adjustment is not required.
11. As has already been indicated the amount involved in the present case is just under $3 million. We can see no rational justificationto depart from the sentences suggested in Clark. This would mean that in the present case the proper sentence which should have been imposed was somewhere around 4 1/2 years.
12. There is a further matter which arises under this application. The Secretary for Justice has been critical of the method which wasadopted by the Judge of deciding what the appropriate sentence should be taking into account totality and then imposing that sentenceon all the charges and ordering that they be served concurrently.
13. While it has to be the case that a large measure of discretion must remain for the sentencer so as to enable him or her to achievethe desired result we are not persuaded that the Judge was in any way wrong in this connection. Unless this approach is adopted thereis a risk that if for any reason some of the convictions are quashed on appeal there is a possibility that there will be a distortedor unrealistic sentence if each charge does not carry the proper sentence.
14. There was nothing in the personal circumstances of the respondent to justify a reduction from the 4 1/2 year sentence we have referredto. He has shown no remorse and inevitably it is the case where someone has been put in a position of trust that they will have anexemplary previous character.
15. We are satisfied that the sentences which were imposed were manifestly inadequate. We order that the sentences be quashed and sentencesof 4 1/2 years imprisonment be substituted for them. All of the sentences will be served concurrently.
Mr. John Reading, S.C., D.D.P.P. (Ag.) & Mr. G.D. Goodman, D.P.G.C. (Ag.) for Applicant
Ms. Annie Lai instructed by M/S Ho, Lo & Yeung for Respondent