The Queen v. Lau Man Wai

CACC000222/1988

IN THE COURT OF APPEAL

BETWEEN

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Coram: Silke, V.-P. & Kempster, J. A.

Date of Hearing: 29th Senptemher 1988

Date of Judgment: 29th September 1988

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J U D G M E N T

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Silke, V. P. :

1. The Applicant, Lau Man Wai aged 29, appeared for trial before His Honour Judge Longley in the District Court upon a Charge sheet containing two charges of theft. He pleaded not guilty to the first charge but guilty to the second. With that plea being entered and accepted, no evidence was offered on the first charge and he was acquitted.

2. The particulars of the second charge were that he, on or about 26th March 1987, stole two cashier orders in the sums of $164,290 and $218,400 respectively.

3. The background to the offence was that the Applicant was employed as a factory manager of widjaja Enterprises Limited. That limited company was a garment manufacturer and it held textise quotas.

4. In early 1987 it got into financial difficulties and the Statement of Facts said it was in the process of being voluntarily wound up. The Applicant was approached by a clerk of another limited company and negotiations we entered into to sell quotas, the property of widjaja. The Applicant had authority to deal in and transfer these quotas. He sold them and he received in return the cashier orders, to which the particulars referred, made out in his own name. He paid those orders into a savings account in his own name in the Hang Seng Bank. He issued receipts in respect of them in the name of the limited company.

5. It was accepted by the sentencing judge that, prior to his arrest which was in July 1987, the Applicant had paid a number of creditors of the limited company the sum of $68,878; that he had paid the sum of $30,000 arrears of salary and of severance pay owed to five of the workers of the limited company and a further $60,000 to a person described as a shareholder and director of the company. This left a balance of $223,741. Of this, he placed $80,000 in a company in which he hoped to be employed and $50,000 was transferred to the bank account of his wife

6. The Applicant has a young child who is now being looked after by other persons and his wife is in a position to work.

7. Mr. Poll has relied on that which is contained in the homemade grounds of appeal of the Applicant which speaks to his previous. History of being in, a firm which was closed down in 1984 leaving him short of $30,000 and then taking up his employment with widjaja which also eventually closed down. Mr. Poll urges us that the Applicant in effect took matters into his own hands because moneys were due to workers and other persons so that, in effect, the victims here became the creditors of the company which was in liquidation rather than the company itself.

8. There is an offer to pay the sum outstanding by instalments which are to come out of the salary to he paid the Applicant for employment which is said to await him on his release.

9. As we have said, the trial Judge did take into consideration the matters of the payments made and of the moneys taken Perhaps, to apply the word "restitution" to those payments would be to stretch that word a little far.

10. In Kwok Lai Ling, C.A.253 of 1988 the judgment of which was given on 15th September 1988, Macdougall, J. giving the judgment of the Court, had this to say in relation to restitution.

"However, actual restitution made voluntarily before criminal proceedings have commenced, or while they are in their earliest stages, may have some relevance to sentencing, as evidence of remorse. On the other hand, where it appears to have been made merely in the hope of obtaining a reduction in sentence, it can no longer he seen in that light. The courts do not make bargains with the convicted which have the effect of allowing them to buy themselves out of the penalty for their crimes."

11. We accept as did the trial judge, Chat here there is remorse evidenced by the transactions before the arrest and by the plea made at the earliest moment together with the accepted co-operation with the police at the time of arrest.

12. In passing the sentence he did the trial judge said this:

"Notwithstanding these matters this was still a serious offence of theft by a man in a position of trust in the company. Had it not been for the mitigating factors I have referred to above I would have sentenced the defendant to 3 years imprisonment. Bearing in mind those factors I sentenced him to 2 years imprisonment."

13. We accept, to quote Mr. Poll, "the sorry gave of the Applicant's employment history" may not have been as fully before the sentencing court as it is before us but that having been said, we do not think the '' sentence of 2 years imprisonment was outside the normal parameters for an offence such as this bearing in mind both the incidents and characteristic which have been out lined to us today by Mr. Poll.

14. The application for leave to appeal against sentence is refused.

Representation:

Michael, Po11 Esq . (Poon & Dissanayake )for Applicant.

I .G. Cross, Esq. for Crown /Respondent.