Ho Wai-wah v. The Queen

CACC000201/1982

Headnote

Sentence 9 years for theft reduced to 6: employee of Securicor steals money carried by Securicor van : surrender to police : P.G. clear record.

BETWEEN

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Coram:  McMullin V.-P., Li and Silke JJ.A.

Date: 29 June 1982

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JUDGMENT

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Silke J.A. :

1. The Applicant was convicted on the 15th February 1982 of the offence of theft. He was sentenced to a period of 9 years' imprisonment.

2. The theft had taken place on the 27th February 1980. It involved a sum of $570,000. Leave to appeal against sentence was refused by the Single Judge on the 27th April and the application was renewed on the 5th May.

3. The Applicant, represented in this Court by Mr. Martin Lee with him Mr. Wesley Wong, appears before us by reason of that renewal.

4. On the 27th February 1980 a Securicor van on which the Applicant, an employee of the company, was one of the four personnel had collected from various places a total sum of $1,250,000. It then became lunch time and the personnel attached to the van went for their lunch parking the vehicle and leaving one person on guard.

5. Half way through the lunch the guards changed and the Applicant returned to the van as guard. It would appear that his duty consisted of his remaining outside the van, he not having the key.

6. About 50 minutes later the other three members of the staff returned to the van and found that the rear doors were broken. The boxes containing the cash had been interfered with and $570,000, and the Applicant, were missing.

7. It has been pointed out to us by Mr. Lee that the remainder, something over $600,000, was left in the van but this did consist, to a substantial extent, of coin though there was paper money which was not taken.

8. The Applicant had provided himself with a change of clothes and a holdall. He had made arrangements with some person to introduce him to a fisherman who would take him to Macau. He got a taxi from the place there the van was parked went to Aberdeen, met the fisherman and went to Macau - the trip costing him $30,000.

9. These arrangements, what I might term "contingent arrangements", were not specific to the day of the offence. The Applicant had been wafting for an opportunity to arise for him to take money from the Securicor van.

10. In October 1981, twenty months later, he surrendered himself in Macau and was returned to Hong Kong on the following day.

11. When he appeared before the trial Judge he pleaded guilty to the offence and it was stated that he had a clear record.

12. Mr. Lee has made three basic submissions : one that the sentence is manifestly excessive : two that the Judge by making reference to "stashing away" the money showed himself to have been unduly influenced in his view of the Applicant's conduct by this reference : third the Judge was incorrect in this instance in considering the imposition of deterrent sentence to be the proper sentence.

13. Mr. McNamara, who appeared for the Crown both in this Court and in the Court below, did not seek to uphold the sentence. He drew our attention to the quantum of this sentence as compared with those sentences passed in what I may term for want of a better name "violent thefts".  The maximum sentence which can be imposed for theft is ten years.

14. On Mr. Lee's second point the trial Judge was doubtful as to the remorse of the Applicant and said it seemed to him that the Applicant only surrendered himself when either the money was "used up in gambling or a substantial portion of it had been safely stashed away". He went on "In either case it makes no difference because it clearly shows that he was not remorseful and that he never formed the intention to return any part of this money to its owner".

15. It is accepted that the Applicant never had an intention of returning any money but if the money were stashed away, so that having served his sentence he could then enjoy the benefit of it, it would have made a difference. The agreed facts were however to the contrary.

16. On the third point we accept that a strong sentence is needed in a case of this nature. We have, however, been referred to Ho Kau v. the Queen ⁽¹⁾, a magisterial appeal, and to Siu Hei Nam and Others v. The Queen ⁽²⁾, a Court of Appeal decision, which support the principle - though there can be exceptions to this - that a deterrent sentence is not one which should be passed upon a first offender who has pleaded guilty.  A deterrent sentence can be a sentence deterrent to the particular offender or a sentence intended to deter others like minded, that is to the world, or both. It is not clear which form of deterrence the trial Judge had in mind here.

17. Be that as it may there were indicators of remorse in the surrender and in the plea of guilty. We do not think that a deterrent sentence would have been warranted in the light of those factors, of the clear record of the Applicant and in the general circumstances here despite the element of breach of trust.

18. As I have said the Crown had drawn our attention to a comparison of this sentence with sentences in robbery cases in which knives are used and violence offered to the victims but we do bear in mind that this was a breach of trust by an employee of some standing with the company and it is not something which can be encouraged by this Court. Our attention has also been drawn to sentences passed in another jurisdiction for similar thefts.

19. We think the sentence to be excessive in all the circumstances of this case. The sentence of 9 years' imprisonment will be set aside and there will be substituted therefor a sentence of 6 years' imprisonment.

(1)    [1978] H.K.L.R. 197

(2)    [1979] H.K.L.R. 188

Representation:

Martin Lee, Esq. , Q.C. and Wesley Wong, Esq. (D.L.A.) for Applicant.

J. McNamara, Esq. for Crown/Respondent.