HKSAR v. Tsui Hi Shing

CACC000206/1997

IN THE COURT OF APPEAL

1997, No.206
(Criminal)

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Coram: Hon. Power, V.-P., Liu, J.A. and Saied in Court

Date of hearing: 22 August1997

Date of delivery of judgment: 22 August 1997

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J U D G M E N T

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Saied, J. (giving the judgment of the Court):

1. The applicant was convicted in the District Court on his own pleas of guilty of 6 counts of theft, contrary to section 9 of the Theft Ordinance and 5 of forgery, contrary to section 71 of the Crimes Ordinance. He applies for leave to appeal against his sentence of 21 months' imprisonment.

2. The facts were set out very comprehensively by the Deputy Judge as follows:

"He was employed by Jumbo World Co. Ltd. as accounting supervisor. He was responsible for all accounting matters of Jumbo World and he was also asked to take charge of accounting matters of Anli International Co. Ltd. which was a related company of Jumbo World. Jumbo World had maintained a current account with Kincheng Bank and cheques drawn upon this account had to be signed by two directors of Jumbo World. Anli International, on the other hand, had maintained an account with the Hongkong Bank. Mr. Ge Se-min, who was a director of both companies, was required to travel frequently to Beijing. For the sake of business convenience, he signed some blank cheques of the Kincheng Bank current account and some blank telegraphic transfer application forms of the Hongkong Bank account and passed these blank cheques and forms to the Defendant for custody. However, the Defendant made use of the blank telegraphic transfer forms signed by Mr. Ge and obtained money from the account of Anli International with the Hongkong Bank. This is the subject matters of the first charge. He also forged the signature of another director of the Jumbo World on 5 blank cheques signed by Mr. Ge, and on each occasion, he withdrew money from the current account of Jumbo World with Kincheng Bank. These are the subject matters of the 2nd to the 11th charges. All these offences took place between 16th of January 1996 to 1st March 1996. According to these 11 charges the total amount of money so dishonestly appropriated by the Defendant was US$6,000.00 and HK$2,397,540.00."

3. The Applicant admitted also that these were sample charges and that he had stolen, including the amounts particularised in those charges, a total of US$11,000.00 using 2 blank telegraphic transfer forms and HK$2,710,698.00 by means of forgery of another director's signature on a total of 11cheques which had been left with him duly signed by Mr. Ge.

4. On 6th March 1996, that is, 5 days after the last offence of theft of $232,020.00, the Applicant confessed his crimes both in writing and verbally to a director of the two companies. He was allowed to repay the stolen money by instalments over a period of 10 years. But he failed to keep up after having paid 2 instalments totalling $43,485.00 and the matter was then reported to the police and the Applicant was arrested. He admitted under caution that he had lost all of the money at gambling in Macau.

5. The Applicant is aged 44 and is a man of clear record. He is married and has an infant daughter; his step-son aged 17 is still at school. He started working in the banking field in 1973 and was able to get some professional qualification by studying after work. He was a junior clerk in the Overseas Trust Bank but rose to the rank of Assistant Vice-President of that bank. However, he resigned in 1994 due to lack of further promotional prospects and he then opened a pet shop with some friends but that venture failed. He faced difficulty in finding a job until he was employed by Jumbo World in July 1995 on a part-time basis at the salary of $6,500.00. He has been unemployed since he confessed to those crimes.

6. According to the probation report, the Applicant claimed that he had taken US$6,000.00 from the company for his stamp speculation business and had lost the money because he had been cheated. In order to cover up the matter, he had hoped to win at gambling in Macau to repay the company but he lost. He had continued to gamble but never won. In the event, he lost all the $2.7 million he had stolen from his employers.

7. In assessing his starting point, the Deputy Judge sought guidance from the case of R. v. Barrick [1985] 81 Cr App 78 in which Lord Lane, C.J. made certain suggestions as to the proper sentence to be passed in cases of theft and fraud where a person in a position of trust had used that privileged and trusted position to defraud his partners or clients or employers or general public of large sums of money. That case was considered in the case of R. v. Ying Lai-chau [1991] 1 HKLR 48, 50, where Macdougall J.A. said as follows:

"We respectfully agree, however, that the factors referred to by Lord Lane at page 82 as being matters to which a court would no doubt wish to pay a regard in determining what the proper level of sentence should be, are of as much relevance in Hong Kong as they are in England. For convenience of reference they are as follows: (i) the quality and degree of trust reposed in the offender including his rank; (ii) the period over which the fraud or the thefts have been perpetrated; (iii) the use to which the money or property dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect on fellow-employees or partners; (vii) the effect on the offender himself; (viii) his own history; (ix) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police."

8. Here the Deputy Judge identified from among the factors listed in Barrick those that he found were relevant to the instant case, those being (i), (ii) and (iii). He also took into account the actual loss to the employers and taking a global view of the offence, found it appropriate to impose "a concurrent sentence on all the charges which can truly and justly reflect the culpability in these offences" and took a starting point of 3 years.

9. The Deputy Judge was in every respect correct in following that case and his analysis of the relevant factors for assessing the appropriate sentence cannot in anyway be faulted. But this we will say, that he was inclined to be more lenient than was appropriate in taking that starting point of 3 years.

10. He considered all the mitigating factors that were put before him including the Applicant's remorse, plea of guilty, clear record and his attempt to make restitution. He gave him a discount of 40% thus reducing this sentence to 21 months on each count to run concurrently.

11. The Applicant now says this sentence is too heavy and has in his grounds listed the following points:

1) he had himself surrendered to the company and confessed his wrongdoing thus saving expense and time to the company in the setting afoot its own investigation;

2) his attempt to make restitution which he could not keep up after having paid for $43,000.00 due to being unemployed.

All these factors were considered by the Deputy Judge who, as we have said, would seem to be lenient in the first place in fixing his starting point of 3 years and just as generous if not more in reducing it by 40%.

12. Nothing new has been urged before us and we find nothing persuasive for us to interfere with the sentence which we find is neither manifestly excessive nor wrong in principle. This application has no merit whatsoever and is refused and we order loss of time of 2 months

Representation:

Mr. A.A. Bruce, S.C. & Miss. Lily Ho May Yu, S.G.C. (D.P.P.) for Respondent

Appellant in person: Tsui Hi Shing