Attorney General v. Chan Suk Lin Kathy
Read the full judgment text of CAAR 2/1979 on BabelCite. This Court of Appeal judgment was delivered on 5 February 1979 before Briggs, C.J., Huggins & Pickering, JJ.A..
Criminal law – theft by employee – application for review of sentence – whether suspended sentence unduly lenient – whether sentencing judge erred in failing to treat offender as employee – The daughter was employed as office assistant at a sole-proprietor advertising and public relations firm from 1973 and was convicted on 20 charges of theft from her employer; 124 further similar charges were taken into consideration – The total sum involved was HK$1,158,000 stolen over a period of more than five years by drawing up cheques for the employer to sign and then diverting the proceeds to payees other than those named on the cheques, supported by false accounting, false receipts and false invoices – In seeking to cover her defalcations the daughter had to discharge some HK$601,000 of the victim's genuine creditors whose funds she had previously diverted, leaving the balance of HK$556,553 by which she enriched herself – Her salary began at HK$700 a month in 1973, rising to HK$1,000 a month in 1976/77 and HK$1,500 a month from September 1978 – The mother worked as personal assistant to the same victim in another firm, then accompanied him to set up his own business where she continued working without salary as his mistress; she was convicted on 20 charges involving HK$84,000 over a shorter period, with six further charges taken into consideration, possibly starting her depredations under the daughter's influence – First issue: whether the suspended sentence of two years' imprisonment imposed on the daughter was appropriate where the sentencing judge declined to treat her as an employee and characterised the relationship as a partnership-like arrangement – Court holds that the daughter was in fact a salaried employee and that her case falls within the norm requiring immediate custodial sentence, distinguishing Tsigg v. The Queen (Crim. App. 710/75) on the ground that the daughter's sole object was self-enrichment, not restitution of losses caused by others – Second issue: whether the suspended sentence of two years' imprisonment imposed on the mother was unduly lenient in light of her 20 convictions for theft – Court dismisses the application, finding no shock or outrage at the suspension, having regard to the vast difference in culpability between the two women, the different relationship between mother and victim, and the substantially smaller amount stolen – Application No. 1 allowed, suspended sentence of two years' imprisonment set aside and substituted with an immediate custodial sentence of twelve months' imprisonment, reflecting this Court's continued view that sentences on applications for review are normally less heavy than would be imposed at first instance so as to recognise the double-jeopardy position of respondents under the review legislation; Application No. 2 dismissed.
Legal issues: Sentence on review for the daughter · Sentence on review for the mother
Outcome: Application No. 1 allowed, suspended sentence for the daughter set aside and substituted with an immediate custodial sentence of twelve months' imprisonment; Application No. 2 dismissed, suspended sentence for the mother upheld.
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CAAR000002/1979
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----------------- Coram: Briggs, C.J., Huggins & Pickering, JJ.A. Date of Judgment: 5 February 1979 ----------------- DECISION ----------------- Pickering, JA: 1. The Respondents to these two applications on the part of the Attorney General are respectively daughter and mother. Following the procedure adopted in the Court below upon the hearing of the respective charges, we have heard the applications for review together. 2. Each woman was charged with 20 separate charges of theft from the same man, no single one of the charges being common to both women. In addition, the daughter, the Respondent in Application for Review No. 1 of 1979, asked that 124 similar charges be taken into consideration whilst her mother, the Respondent in Application for Review No. 2 of 1979, asked that six other charges be so taken into consideration. The total sum of money involved in the 144 charges in which the daughter was concerned was $1,158,000 and that sum was stolen from her employer over a period of something in excess of five years. The total amount involved in the 26 charges with which the mother was concerned was $84,000 obtained over a considerably shorter period. 3. Both women worked in an advertising and public relations firm the sole proprietor of which was their victim. The daughter had been employed by him since 1973 as an office assistant and her duties, which were numerous, included drawing up cheques for her employer to sign as well as keeping the books of account. By a process which we need not detail the daughter succeeded in having the proceeds of cheques signed by her employer, Mr. Wai, paid to payees other than those whose names had appeared on the cheques at the time they were signed by Mr. Wai and this was the deceit which was indulged in to the extent of more than $1,100,000 over the period of rather more than five years. The system involved also false accounting on the part of the daughter and the printing and provision of false receipts and false invoices. It is fair to say that in the course of endeavouring to cover up her defalcations she found it necessary from time to time to discharge or partly discharge her victim's indebtedness to genuine creditors from whom she had previously diverted his funds to her own use; in this manner she paid off creditors to the extent of some $601,000 leaving as the balance with which she enriched herself, the sum of $556,553. Moreover her salary was anything but generous - beginning at $700 a month in 1973, rising to $1,000 per month during the financial year 1976/77 and finally to $1,500 per month in September 1978. However, making full allowance for the reparation which she made over the years and for the paucity of her salary this remains a case of an employee swindling her employer by most devious means over a period of years. 4. The learned judge however did not treat her as an employee - saying that the victim was not an employer in any sense of the word and attributing to the position of the two women something in the nature of a partnership in which they received no share of the profit and no accounting. Whilst it was true, as we shall see, that the mother was in no sense an employee of the victim that cannot be said of the daughter who worked for him on a salaried basis. Whilst, in stating that the normal sentences for offences of this type are immediate custodial sentences, this Court has entered the very necessary caveat that each case must be dealt with on its merits, we do not consider that the case of the daughter can be said to fall outside the norm. Nor do we consider that the case of Tsigg v. The Queen(1), quoted by Mr. Jackson-Lipkin for the daughter, in which a sentence of two and a half years' imprisonment was set aside and substituted by two years' imprisonment suspended for two years, assists him. In that case it was accepted that the appellant's sole object in his defalcations was to attempt, by means of gambling, to recoup to his firm monies which two young girls had previously stolen from the firm and thereby save them from the effects of their own folly. In the present instance, the daughter's object was nothing more nor less than self-enrichment. In all the circumstances we consider that Application No. 1 must be allowed, the sentence of two years' imprisonment suspended for two years set aside and substituted by an immediate custodial sentence of twelve months' imprisonment. That sentence reflects the continued view of this Court that sentences imposed upon applications for review will normally be less heavy than the members of this Court might have imposed at first instance - thus reflecting the position of Respondents to these applications which is one of double jeopardy having regard to the two bites of the cherry allowed to the Crown under this legislation. 5. Turning to the case of the mother, who received a similar suspended sentence, she had worked as personal assistant to the victim in another firm and there existed between them an intimate relationship in that she was his mistress. When the victim set up his own business she came with him to assist him in that business and continued to do that for years without salary right up to the time of her arrest. Her defalcations, whilst by no means trivial, were immeasurably smaller than those of her daughter and did not begin until well over twelve months after those of the daughter; again, the methods employed by the mother were substantially the same as those to which the daughter had resorted and it is entirely possible that the mother began her depredations under the influence of the daughter. We have said sufficient to indicate that there was a vast difference in culpability between the two women which difference was by no means confined to the important factor of the relationship between the mother and the victim. 6. We encounter no sense of shock or outrage at the suspension of the sentence imposed upon the mother and Application for Review No. 2 of 1979 is dismissed. Representation: D.R. Boy for Crown/Applicant. Jackson-Lipkin, Q.C. & Miss L. Fung (H.H. Lau & Co.) for Respondents. (1) Crim. App. 710/75. |