Read the full judgment text of CACC 168/2018 on BabelCite. This Court of Appeal judgment was delivered on 3 April 2019 before McWalters JA, M Poon J.
Criminal law – fraud – Theft Ordinance Cap 210 s.16A – breach of trust – conveyancing clerk misappropriating clients' monies – guilty plea – sentencing – global approach versus individualised approach – sentencing bands under HKSAR v Cheung Mee Kiu and HKSAR v Ng Kwok Wing – whether sentencing band determined by amount charged or actual loss – whether prior conviction for similar dishonesty offence can be relied on as mitigation – applicant employed as conveyancing clerk by S. Cheng & Yeung, Solicitors since 2009 – stole clients' monies over several years by altering payee names on cheques, misappropriating monies received as agent and falsely instructing firm's accounts staff to transfer client monies – total misappropriated HK$35,797,221 – actual loss HK$10,498,193.54 – heavy personal debts from mortgage, bank loans, credit cards and gambling – undisclosed prior 2007 conviction for conspiracy to defraud – whether global approach to sentencing (same sentence on each count, all concurrent) is wrong in principle – held yes, individualised sentences required for each offence with totality considered afterwards through concurrency or whole or partial consecutiveness – whether sentencing band determined by amount in charge or actual loss – held by amount in charge, actual loss is mitigation only – appeal allowed – sentences of 8 years on each of the three counts quashed – substituted with 6 years on Count 1, 10 months on Count 2 and 4 years on Count 3 – Count 2 concurrent with Count 1, 2 years of Count 3 consecutive to Counts 1 and 2 – total effective sentence 8 years' imprisonment.
Legal issues: Whether a global approach to sentencing on multiple charges is wrong in principle · Whether the sentencing band for breach-of-trust fraud is determined by the amount in the charge or the actual loss suffered
Outcome: Application for leave to appeal against sentence allowed; sentences of the trial judge set aside and the applicant resentenced by the Court of Appeal to an effective total of 8 years' imprisonment.
Cited by 2 cases · Cites 6 cases