The Queen v. Yan Shui Hing

CACC000287/1988

BETWEEN

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Coram: Hon, Cons, V. P., Kempster & Clough, JJ. A.

Date of hearing: 26th October, 1988.

Date, of delivery of judgment: 28th October, 1988.

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J U D G M E N T

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Cons; V.-P. delivered the judgment of the Court:

1. This is an application for leave to appeal against a sentence of 2½ years' imprisonment imposed by Deputy Judge Hawkes sitting in the District Court.

2. The applicant pleaded guilty to a charge of theft which alleged that on divers day between the 3rd January and the 14th December 1987, he stole virtually $200,000 belonging to his employer the Pullex Bleaching and Dyeing Works Limited.

3. The Applicant had been cashier In that firm since 1973 with a salary of some $6,000 per month. His duties were to keep the ledger and to retain in safe keeping monies in the Reserve Fund (which we understand to be the petty cash) and in the Welfare Fund.

4. In early December last year he was required to prepare a statement of the funds, which he promised by the 16th December. instead of doing so he went missing and was subsequently arrested, on the 18th January, at the Macau Ferry Pier.

5. He is aged 43, was born in China, and came to Hong Kong with his mother in 1962. He had received some education in China and for a while studied here as a civil engineer, but finally settled for work of a clerical nature.

6. Shortly after becoming cashier to the Company, he married and there is a child of the family. It was not a successful marriage. The couple were in some ways incompatible. However they did not separate until November last year, (we understand that they are now divorce). Nevertheless it was not by reason of incompatibility that the Applicant's wife left him but for the same reason which has brought him before the courts that is, he became addicted to gambling. Even so, at one stage she did kelp his by paying off his debts to the extent of $300,000, against the promise not to gamble again. Sadly it was not kept and he turned to taking money from the Company which employed him.

7. The grounds of the appeal, as formally put forward, were firstly that in all the circumstances of the case. he starting point of 3 years taken by the Deputy Judge was manifestly excessive; and secondly, that he had given insufficient discount for he Applicant's plea of guilty.

8. The application however has been pursued before us by Mr. Thomas Iu, on the Applicant is behalf, by reference to many decisions of this Court in similar cases placing particular emphasis by way of comparison upon the three features of 1. the amount of money taken, 2. the period over which it was taken, and 3 the status of the position held by the culprit.

9. It must be accepted that circumstances in which crimes of his nature are committed are infinitely various and that to concentrate on particular aspects is not always helpful. But where there are no particularly unusual circumstances as in the present case, then an approach of this kind can be of assistance in establishing consistency in sentencing

10. It would appear than the judge below did not have the benefit of being referred to such ample authority. Had that been so it is likely that he would have found, as tic do, that the appropriate sentence indicated by those authorities, - and in particular R. v. Chan Kit Ling, Criminal Appeal No. 395 of 1987 unreported 16 October 1987, in circumstances such as the present would have been one of 2 years.

11. Accordingly, we allow the application, treat the hearing as the appeal itself, allow the appeal and reduce the sentence to 2 years imprisonment.

Representation:

Thomas Iu assigned by (D.L.A.) for the Applicant

G.J. Lugard-Mawson, Crown Prosecutor for tine Respondent