Chik Yam Ming v. The Queen

CACC000024/1981

Coram: Li, J.A., Baber and Addison JJ. in Court

Date of Judgment: 5th March 1981

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JUDGMENT

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Li, J.A.:-

1. This is an appeal against sentence. The appellant was convicted of 15 charges of theft. Originally he was charged with 53 charges of the same nature. However, he was acquitted of 27 of them. The Crown offered no evidence in respect of 7 of them and would not proceed in respect of another 4. After some days of trial the appellant reversed his plea to one of guilty to 15 the charges of which he was convicted.

2. The very short history of fact was that the appellant was employed originally by a watch company (the Tele-Art Co., Ltd.,) as a trainee. In the course of time he was promoted to one of nine store-keepers under the supervision of a head store-keeper. This company sub-constracts the work of assembling electronic parts for making watches to other firms. Some of these parts were issued out by the company to the sub-contractors in Hong Kong and Canton for assembling. The modus operandi of the appellant was that between April and November, 1979, he simply took out more of these electronic parts to be issued and invoiced to the sub-contractors. He then took the stolen parts from the Tele-Art Co., Ltd., to his confederate to be assembled into watches, had the watches sold and pocketed the proceeds. The theft was discovered. He was arrested in November, 1979. Upon checking it was revealed that a huge amount of electronic parts was stolen from Tele-Art Co., Ltd. These form the subject matter of the original 53 charges.

3. It is not so clear that after the arrest of the appellant whether the parts stolen in respect of all 53 charges were fully recovered. From the summary of facts on record all we know is that after his arrest the head store-keeper did a stock check and found that the property listed in 15 of the charges, namely the 15 charges of which he was convicted, was missing from the store room of the company. The total value of these properties amounted to approximately $267,000. These parts were recovered by the police from one Lau Hon-luen, who was the person who assembled the stolen parts for the appellant. Lau was granted an immunity by the Crown to testify against the appellant in his trial. The appellant was sentenced to a term of imprisonment of 21 months in respect of each of the 15 charges to run concurrently.

4. The learned judge in his reasons for sentence said that he has taken into account the appellant's clear record and that the appellant pleaded guilty after some days of trial and that the goods, the subject matter of the 15 charges, had been all recovered; the appellant's age, background and personal circumstances. Before sentence was passed a Probation Officer's reqport was called for and considered by the trial judge. Having considered all these elements and following a case in Application for Review No. 13 of 1975 the learned trial judge came to the conclusion that the sentence of 21 months was appropriate.

5. Mr. Bleach, on behalf of the appellant, has said everything that can possibly be said in favour of the appellant. He readily concedes that, in normal circumstances, the sentence of 21 months is not excessive. However, compares the present case with that in Application No. 13 of 1975 where there was a much older person after years of fraud and theft, stole electronic parts from a company to the value of $483,000 odd and on application to review the sentence this Court imposed an immediate custodial sentence of 2 years imprisonment. Mr. Bleach contends that there must be a difference between the present case and that case. First of all there is a difference in age, secondly the amount involved and thirdly there was an element of forgery involved in the 1975 case but none in the present case.

6. We feel that there is, in fact, not a very great deal of difference. Both occupied a position of trust; both carried out a systematic theft. Although the amount in value of the goods stolen is different yet the act of systematic theft and the dishonesty by a person in a position of trust that are the essential elements of the offence. The second point that has been advanced is that the handler who had been charged with the appellant received only a sentence of 9 months imprisonment. While we feel that an appellant should not leave the Court with a sense of grievance owing to disparity in sentence we also feel that the appellant received what is his due. He was a person in a position of trust. In order to satisfy his own sense of greed he carried out a systematic theft.

7. His personal circumstances are such that he fell in love with a girl and wanted to marry her. The girl's parents made stringent demands as conditions for the wedding. In this day and age it is very unfortunate that people still attach so much importance to financial demands as a condition precedent to allowing a daughter's marraige. The sooner the young people feel strong enough to resist such unreasonable demands from parents the better. But that is no excuse for these offences. As it happened the appellant purchased a flat, even though on mortgage, to the value of $160,000. He also purchased a car. These were obtained by his acts of theft.

8. We have considered the case as a whole. We find that the case in Application No. 13 in 1975 was an application for review. It is normal in this Court to give a discount of what we feel is a proper sentence. Had it been a sentence of the Court of Trial we are certain that the sentence in the 1975 case would be more than 2 years in respect of that respondent.

9. In summary we feel that a 21 month imprisonment for the offences is not manifestly excessive and accordingly the appeal must be dismissed.

Representation:

J. Bleach (Haldane & Midgley & Co.,) for appellant

C.A. White for Crown