The Queen v. Leung Sai Foo

CACC000275/1991

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Coram: Silke, V.-P., Macdougall, J.A. & Liu, J.

Date of hearing: 10th June 1992

Date of delivery of judgment: 10th June 1992

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J U D G M E N T

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Liu, J.:

1. This is the judgment of the court.

2. Leave is being sought on behalf of the applicant to appeal against the sentences passed on him by Wong J. The applicant faced some 32 counts of theft involving a total of $37m. In 1984, about $1/2m had been put back and, in 1988, a further $4.5m was put back into his employer's accounts. When the deception later came to light, he made a clean breast of it to his employer and surrendered himself to the police. He assisted the Commercial Crime Bureau for a year and a half and signed no less than 30 cautioned statements. He pleaded guilty to all the 32 counts and was sentenced to 3 years imprisonment on the 1st to 15th counts concurrent and 5 years imprisonment on the 16th to 32nd counts, concurrent. The trial judge ordered the sentences imposed on the 1st to 15th counts to run consecutively to the sentences imposed on the 16th to 22nd counts: making an overall term of 8 years.

3. The applicant had been with his company for 15 years, rising through the ranks to the office of Chief Accountant. He enjoyed a position of trust. He is aged 47. The betrayal of his company is wholly unforgivable. The amount involved speaks for itself. The frauds had been carried out over a period of 51/2 years. The devices used were consistently the same and included forgery.

4. We were directed to four factors which were suggested as being indicators of the worst type of fraud advanced by the Crown in Attorney General v. Dominic Cheung Kai-man [1987] HKLR 788 at p.793. The serious frauds in this case could, in our view, be properly regarded by the trial judge as coming close to the worst kind. In the circumstances as he found them, we think the judge was right in considering the appropriate sentence as starting at or near the statutory maximum for a single offence.

5. The applicant's plea was only to be expected, so said the judge, in the light of the overwhelming evidence. He bore that in mind in arriving at the discount to be given to the applicant. He also had it in mind that he was dealing with 32 separate counts of theft.

6. Mr. Lok, who appeared for the applicant in this court, has drawn our attention to what he suggests was a disparity between the sentences given for counts 1 to 15 and those given for counts 16 to 32. In sentencing for offences such as this, a degree of artificiality cannot be always avoided. What the trial judge was doing was to focus upon the appropriate overall term of imprisonment and achieve it by this method.

7. The trial judge was not altogether quite accurate in comments he made on what he appeared to consider was an untraced $26m. In view of the concession by the Crown that $20m had been invested and lost in an investment firm and $6m was lost in companies set up by the applicant, his obvious scepticism appears unjustified. But $6m did remain entirely untraced. We do not think that, however, this made the sentence he imposed unsustainable.

8. The overall term of 8 years for 32 counts of theft involving what amounted to a serious fraud by a man in the applicant's position is not, in our view, manifestly excessive. For all these reasons, the application for leave should not be acceded to, and we refuse it.

Representation:

Lawrence Lok, Esq. (Raymond M.K. Wu & Co.) for the Applicant

D.G. Saw, Esq. for Crown/Respondent.