The Queen v. Kong Kam Hoi

CACC000173/1985

BETWEEN

Coram: Roberts, C.J. & Silke, J. A.

Date of hearing: 1 August 1985

Date of Judgment: 1 August 1985

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JUDGMENT

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Silke; J. A.:

1. The applicant seeks leave to appeal against the sentences imposed upon him in relation to two counts of causing money to be transferred on a forged instrument and two counts of uttering a forged document. The total sentence imposed was three years imprisonment.

2. What the applicant had done was, being a clerk in the Morgan Guaranty Trust Company, he breached the trust placed in him by crediting an account of his own in another bank in the sum of US$50,000 in May 1984. He forged the signature of a bank officer officer telex authorization for the purpose of doing this. Before the bank's monthly reconciliation took place, he repaid the money.

3. In January 1985, he went through the same process, also in respect of another transfer of US$50,000, using the same type of forged authorization and forging the signature of the same man in order to effect the transaction between Hong Kong and the United States, that is banks in both place This money he lost and was unable to repay.

4. The subject of the third and the fourth counts of uttering forged documents, these being forged bills of exchange, first in the sum of US$1,000 and secondly in the sum of US$90,000. The matter of the US$90,000 came to the attention of the bank, they noticed the irregularity and they questioned the applicant. He then confessed all.

5. When he appeared for trial, he pleaded guilty. The trial judge very properly called for a Probation Officer's report which was of assistance to him as it is to us. The applicant has today addressed us at length in giving the reasons why the sentence should be reduced. It comes down to this that he involved himself in a family debt of $5,000 which he could not pay directly. He gambled to repay that in one lump. He lost. He then began to borrow money from finance companies. He gambled and failed again and this led directly to his first removal of money from his employer.  While he was able to repay the sum taken he, did not succeed in gaining enough over and above to pay off the other debts then outstanding. The next sum he removed he gambled with and lost and he then attempted to cover up by the forgeries referred to in the final two charges: the US$1,000 and the US$90,000 items. There was no loss to the bank in respect of either of those items and the net amount which he has taken from the bank of US$50,000 is approximately HK$390,000. That sum, of course, is still unpaid. There are also three other unpaid debts amounting to $15,000.

6. The Probation Officers Report shown that the applicant came from a generally average, stable family but his life was complicated by the father's failure in business and also by the fact that one of his brothers is mentally handicapped. He has shown remorse and we accept that this is a genuine remorse. He is aged 25 now, he was 24 at the time of the offence. He has lost all possibilities of Employment similar to the one which he had. He has the weight of the debts sitting upon him.

7. We think that in the circumstances of the man himself and generally of the offence and that which led up to it which was, as far as we understand it from the papers, a genuine family debt, money used for family purposes, that a totality of three years imprisonment is too high. To reflect that, we would grant this application and allow the appeal, quash the sentences on the four courts of two years, two years, two years and three years respectively and substituted for each of those sentences a sentence of 1½ years (18 months). Those sentences to run concurrently.

8. We are not unaware of the background of breach of trust which is inherent in an offence of this nature but we think that the sentences proposed reflect the proper nature of the breach here and, as I have said, the circumstances of the man. The appeal will, therefore, be allowed to that extent.

Representation:

Applicant - in person.

G.J.X. McCoy, Esq. for Crown/Respondent.