Suen Cheung Tsan v. The Queen
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CACC000191/1969 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 191 OF 1969 -----------------
----------------- Coram: Hogan, C.J., Rigby, S.P.J. and Blair-Kerr, J. Date of Judgment: 31 May 1969 ----------------- JUDGMENT ----------------- 1. In an address which echoes an earnest plea in mitigation by Mr. Willis in the court below, of which the trial judge has made particular mention, Mr. de Basto has urged upon us that the sentence imposed is excessive and should be reduced. The accused, he says, was employed by a large textile firm from the age of 17 and he had been instrumental in procuring no less than 6,500 business transactions for his employers, bringing in up to three million dollars worth of business a month at a time when his salary was no more than $360 per month. Mr. de Basto contended that this figure had not been altered up to the time of the offences under enquiry, which occurred when the accused was only 24/25 years of age. He was, of course, suggesting that it was largely because of the action of the firm in keeping a young and successful business man on so low a salary, when he was bringing in so large a return, that the temptation of appropriating some of these substantial sums to his own profit proved too strong. 2. The statement about salary was challenged by counsel for the Crown who said that the accused's salary had been raised to $750 a month at the end of 1964 and that he was being paid at that rate at the time the offences were committed. Moreover, counsel for the Crown said, there was a relationship between the accused and Mr. Chan, principal of the firm, as a result of a religious or quasi-religious ceremony into which both had entered, amounting to a relationship not unlike adoption which would imply expectations of promotion etc. in future. 3. Mr. de Basto went on to draw our attention to a number of cases including that of Chu Hak Lit v. R.(1) and four English cases, R. v. Abraham(2), R. v. Haycox(3), R. v. Attwood(4) and R. v. Morris(5). He placed particular reliance on the sentence imposed by the Victoria District Court in the case No. 29 of 1968, R. v. Carlos Manuel da Luz. He also stressed the assistance given by the accused to the police, his plea of guilty, the importance of a second chance, and of rehabilitation as opposed to deterrence, and that this was not a prevalent offence. Moreover, he said, another firm had now employed the accused and was willing to continue his employment if he was available. 4. Counsel on the other side pointed out that the accused never went to his employer and made disclosure of his position, that he had occupied a post of trust, and that although there were not many such cases, there was a need for deterrence which would not be met if the courts did not impose substantial sentences in such cases. He pointed out that the English cases mentioned by Mr. de Basto involved very small sums of money and that there are other cases indicating a more severe approach. 5. It is apparent from the careful and comprehensive statement of his reasons for sentence that the trial judge took due account of the material circumstances which were urged before him and which have again been urged before us, and there would seem to be no justification for thinking he did not give to them their due and proper weight. He was concerned not with an isolated instance but with a series of embezzlements spread over a period of approximately a year, involving 22 offences and a sum of $134,000. It is said that the accused has co-operated with the police, but it does not appear that any of this money has been repaid or in any way accounted for, nor does it appear that the apprehension of the accused was due in any way to repentance on his part, or that the co-operation has led to developments which would not have occurred in any event. On the other hand he did plead guilty in court and the judge has said that he was making full allowance for the assistance given to the police and the element of remorse indicated by this plea. The fact that he was married and had a home was also given due weight. 6. Much was made before us of the sentence imposed in the da Luz case for offences of a somewhat similar, if not indeed more serious, character. We can only say that the sentence imposed in that case does appear, on the face of it, to be light, although there may have been circumstances of which we are not aware that made it justifiable. There are other reported cases which would indicate that the sentence in the present case in not unduly heavy. 7. Having given the matter very careful consideration and taken full account of the arguments advanced before us, the majority of the court is of the opinion that we would not be justified in interfering with the sentence imposed by the judge in the court below. Representation: ...(illegible) (1) (1965) H.K.L.R. 780. (2) (1965) C.L.R. 119. (3) (1965) C.L.R. 499 (4) (1966) C.L.R. 457. (5) (1966) C.L.R. 458. |