Read the full judgment text of CAAR 000002/1979 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.