R. v. Lam Kin Wo

CACC000255/1995

IN THE COURT OF APPEAL

1995, No.255
(Criminal)

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Coram: Hon. Power, V.-P. and Mayo, J.A.

Date of hearing: 6 October 1995

Date of judgment: 6 October 1995

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. This applicant pleaded guilty to one charge of forgery and 16 charges of theft.

2. The facts revealed that he was a temporary teller at the Upper Lai King Branch of the Hong Kong Bank from November 1992 to June 1994. On 27th May 1994 a Mr. Lun Chun-pak went to the bank to withdraw cash from his savings account and discovered that the balance as shown by the computer was different from that of the passbook. After checking with the bank, Mr. Lun found that $58,025 was missing from his account. Inquiries revealed that the applicant was involved in the incident and the matter was reported to the police. After arrest under caution the applicant admitted forgery of the passport by typing entries from it onto a blank passbook. He further admitted using the forged passbook to withdraw a total amount of $58,125 on 16 occasions from 12th May 1994 to 26th May 1994.

3. The facts revealed a course of conduct involving a number of thefts. The trial judge stated, when he gave reasons for sentence, that he considered that these were serious offences, the more so because the defendant used his position as an employee of the bank to commit them. He said:

"What he did was grossly in breach of the trust that his employer, the bank, reposed in him as a bank teller, and he betrayed that trust.

Fortunately, the innocent bank customer is not out of pocket in consequence of these offences. The defendant, apparently using his mother's money, repaid the sum to him via the Hong Kong Bank on 21 June of last year but plainly, whenever bank employees behave as this defendant behaved, confidence of other customers of the bank must inevitably be shaken. The effect of such behaviour on other honest bank employees must be taken into account as must the sum of money involved and, as well as other matters, the period over which these dishonest transactions took place.

The sum of money stolen in this case is fortunately relatively small. The defendant, a young man, who has a clear record has had the good sense to plead guilty the thus save a good deal of time and expense. Such pleas are indicative of remorse. Once the game was up and he had been found out, he co-operated with the police."

The judge went on to say that he had studied the background reports and that they had been of a great assistance to him. He commented finally:

"... the defendant, like many others, sought to make his fortune at the expense of others, in his case at the expense of his mother's savings and those of friends. With no expertise whatsoever, he proceeded to gamble on the stock market and lost over $400,000 of other people's money. That says a lot to me about this defendant as does the fact that he now appears, from reading the background report, to be blaming others for that loss. I confess to being somewhat surprised that this defendant, having been summarily dismissed by the Hong Kong Bank upon discovery of these offences, the defendant then sought and obtained employment in another bank albeit in another capacity.

He went on:

"Giving the defendant credit for his pleas of guilty, I sentence him in respect of Count 1, that is the forgery count, to 2 years imprisonment, and in respect of each of the 16 offences of theft, to 9 months imprisonment. The sentences in respect of the thefts will be served concurrent but consecutive to the sentence which I impose for forgery. In other words, you will go to prison for a term of 2 years and 9 months."

4. The applicant now seeks leave to appeal against that sentence submitting that it was too severe. He points out that he pleaded guilty to all the charges. This is certainly so and it was taken into account by the trial judge. He relies upon the trial judge's words that it was "a relatively small amount" pointing out that it was "only $58,000". We find it difficult to give much weight to this suggestion. We are sure that to Mr. Lun, the initial victim, $58,000 was a very substantial amount as it is, indeed, to most members of this community. He said that no one had suffered by the loss. Fortunately this is so. That, however, is only because his relatives stood behind him and are, in fact, rather than the Hong Kong Bank, the victim named in the charge, the ones who have suffered monetary loss. He urges his clear record but the trial judge was fully aware of that also. He says he has fully co-operated with the police, the trial judge was aware of that. He says he is remorseful and wishes to correct himself. The trial judge accepted that to be so. He points to his good conduct after the offence. That may be so but it can weigh little when assessing the proper sentence. The trial judge, as we have indicated, had in mind all of the relevant matters. He imposed what in our view was a lenient sentence for a bad breach of trust.

5. We have no hesitation in refusing this application. We had considered whether we should order loss of time. However, we are, in the outcome, satisfied that it is sufficient to confirm the sentence of two years and nine months and to dismiss the application.

Representation:

Ms. Wong Kam-ying, A.P.C.C. (Ag.) (Crown Prosecutor) for the Respondent.

Applicant in person.