HKSAR v. TO CHUNG HANG JEFFREY

HCMA 1330/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGIDTRACY APPEAL NO. 1330 OF 2001

(ON APPEAL FROM WSCC 12843 OF 2001)

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BETWEEN

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J U D G M E N T

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1. This is an appeal against sentence only.

2. The appellant was convicted on his own plea of an offence of preparing an instrument whilst an unqualified person, contrary to s.47 of the Legal Practitioners Ordinance Cap.159.  The magistrate fined the appellant $20,000.  The appellant appeals on the basis that the sentence was too severe.

3. The facts of the offence were that the appellant operated, as a sole proprietor, a business which assisted landlords in such things as the recovery of possession of premises from tenants and the recovery of outstanding rent and with proceedings in the Lands Tribunal.  So far as the latter form of assistance was concerned, on the occasion of the offence the appellant’s company under his direction had prepared and filed for reward a Lands Tribunal Form 22, which was a form required by the Lands Tribunal in proceedings by landlords against tenants for the recovery of rent. Section 47 of Cap. 159 provides that:-

“…any unqualified person, not being a barrister or a notary public, who, unless he proves that the act was not done for or in expectation of any fee, gain, or reward, either directly or indirectly draws or prepares any instrument relating to movable or immovable property or to any legal proceeding shall be guilty of an offence…”

4. The appellant in his mitigation, which was accepted by the magistrate, said he had been completely ignorant of the law in this respect and that he would not have committed the offence if he had known it was against the law.

5. In sentencing the appellant the magistrate said:-

It is right to say the defendant at no stage tried to impersonate or pretend to be something that he was not which must be at the heart of this legislation.  He simply saw what he thought was a niche to open a business.  He opened that business and only later did he discover that he fell foul of the Legal Practitioners Ordinance.

The defendant is of previous good character. He has a settled job.  I am certain that a fine will do justice to the case….”  

6. The appellant had apparently received $4,400 in fees from his client in respect of his rental recovery services, which included the unlawful preparation of the charged document.

7. The maximum fine by way of penalty provided by the legislation is $500,000.  The fine of $20,000 imposed by the magistrate reflected the fact that the magistrate regarded the offence as being at the lower end of the sale.  In forming that view he obviously, from his given reasons for sentence, gave credit to the appellant not being aware he was committing an offence.  Indeed, in this case, it is obvious the appellant had a complete absence of mala fides in committing this offence.  He was simply a businessman who had made a mistake and was of, and in my view and no doubt the magistrate’s view, remains of good character.

8. In my judgment the magistrate was right to impose a reasonably substantial fine on the appellant given the commercial nature of the offence and the fact that such offences obviously require some element of deterrence.  But having said that the level of fine imposed is at a premium of nearly 5 times the amount received by the appellant.  In the circumstances of this case I think that is too much.  I propose to reduce the fine to a premium of between 2 and 3 times the amount of money received by the appellant.

9. In my judgment that will carry with it an appropriate level of deterrence and properly reflect the facts of the case.  That level of fine will also carry with it the fortunate circumstance that s.2(1) of the Rehabilitation of Offenders Ordinance will apply to allow the appellant to have a clear criminal record, assuming he commits no further offences, in 3 years’ time.

10. Accordingly the magistrate’s sentence is varied by way of the fine of $20,000 being substituted by a fine of $9,500.

Mr Jackson Poon, SADPP(Ag.) of the Department of Justice for the Respondent

Appellant in person