HKSAR v. Hung Fan Ying Sandy

CACC000037/2003

CACC37/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.37 OF 2003

(ON APPEAL FROM HCCC NO.147 OF 2002)

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Coram: Hon Stuart-Moore VP and Gall J in Court

Date of Hearing: 28 August 2003

Date of Judgment: 28 August 2003

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J U D G M E N T

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Hon Gall J (giving the judgment of the Court) :

1.The Applicant was convicted on her own plea on 15 January 2003 of nine counts of theft and was sentenced on the same day by Deputy High Court Judge Line to imprisonment for 7 years and 6 months on each count, the terms of imprisonment to be served concurrently. She now seeks leave to appeal each of the sentences imposed.

2.The Applicant was employed by the Overseas Trust Bank ("OTB") for over 20 years. She became the manager of the Caine Road Branch in May 1987 and came to personally handle the time deposit accounts for each of the persons named in each count in the indictment. She knew each of them personally, one was a friend. She was transferred to the North Point Branch in 1999 and she asked her customers to transfer their accounts to that branch.

3.Each of the victims placed their trust in the Applicant to handle their bank accounts at the OTB. They seldom gave regular instructions to the Applicant to renew their time deposits. They let the Applicant renew them on their maturity dates. They regularly received written confirmations of time deposits and notification of interest rates in respect of their accounts from her both before and after the appropriation of funds.

4.After several renewals of the time deposits had been effected the Applicant withdrew from the accounts sums of money to purchase cashier orders, made payable to a company called Combest Trading Limited ("Combest") which was controlled by the Applicant. The cashier orders were deposited into a bank account in the name of Combest at the China and South Sea Bank.

5.In some instances, the Applicant opened fictitious accounts in the OTB and sums of money were withdrawn from the victim's account and transferred into the fictitious accounts using cashier orders. The funds were then transferred to the bank account of Combest.

6.The sums paid into Combest's account remained there for a short period of time and were then transferred to an account at the China and South Sea Bank in the name of a company called Richline Investment Limited which was controlled by the Applicant and by another. The Applicant continued to forward to those who held the accounts false confirmations of time deposits to cover up her theft from the account the false confirmations purported to show the time deposits were renewed. The victims did not become suspicious.

7.The total amount taken from the accounts referred to in the nine counts of theft was a sum of HK$17,848,133. There has been no restitution. It has been confirmed this morning by the Applicant that none of the money has been repaid.

8.The guidelines for cases of theft by a person in a position of trust were set out in the case of Barrick (1985) 81 Cr.App.R. 78. These were subsequently revised in the case of Clark [1998] 2 Cr.App.R. 137 to take into account the effects of inflation since Barrick and the fact that the maximum sentence for theft in England and Wales had been reduced from 10 to 7 years. The maximum sentence for theft in Hong Kong is a period of 10 years' imprisonment. Barrick dealt with serious cases where :

"... a person in a position of trust, for example, an accountant, solicitor, bank employee or postman, has used that privileged and trusted position to defraud his partners or clients or employers or the general public of sizeable sums of money. He will usually, as in this case, be a person of hitherto impeccable character. It is practically certain, again as in this case, that he will never offend again and, in the nature of things, he will never again in his life be able to secure similar employment with all that means in the shape of disgrace for himself and hardship for himself and also his family."

The Applicant falls within that definition in Barrick.

9.The guidelines indicated that such a case will attract immediate custody, save in very exceptional circumstances or where the sum involved is small.

10.The revised guidelines in Clark are :

"... Where the amount stolen was not small, but was less than ￡17,500, terms of imprisonment from very short up to 21 months would be appropriate; cases involving sums between ￡17,500 and ￡100,000 would merit two to three years; cases involving sums of between ￡100,000 and ￡250,000 would merit between three to four years; case involving ￡250,000 to ￡1,000,000 would merit between five and nine years and cases involving ￡1,000,000 or more would merit ten years or more. Those terms were appropriate for contested cases. Pleas of guilty would attract an appropriate discount. Where the sums involved were exceptionally large and not stolen on a single occasion, or the dishonesty was directed at more than one victim or group of victims, consecutive sentences might be called for."

11.In this matter a total sum of HK$17,848,133 was taken over a period of two years from a number of victims who gave the Applicant their trust as their bank manager and none of that money has been repaid.

12.The judge having reminded himself for the guidelines in Clark and the higher maximum sentence for theft that prevails in Hong Kong took as a starting point a total period of 11 1/2 years' imprisonment by making the sentences partly consecutive to reflect the total criminality of the Applicant in respect of all of the nine counts to which she pleaded guilty. To give effect to the mitigation of her plea of guilty he reduced that period to one of 7 years and 8 months in total. He reduced the sentence by two months being the period the Applicant spent in the United States of America prior to her consenting to return to Hong Kong and arrived at a period of 7 years and 6 months' imprisonment in respect of each count on the indictment. He ordered all the sentences to be served concurrently.

13.In addition to the grounds of appeal set out in her application the Applicant has this morning put forward a number of further grounds. She has referred us to a number of cases that have come to her attention since she has been in custody. Other cases, decided on different facts, are rarely of any assistance to this court. We are not generally concerned with other offenders who may or may not have received comparatively lighter sentences. Here, we are only concerned with the correctness or otherwise of the sentence imposed on the Applicant in the present case.

14.The Applicant referred to her clear record and we note from the reasons for sentence of the judge that he knew of that mitigation and took it into account. She also argued that her motive in taking the money was not put forward in any detail to the judge nor were her unhappy personal circumstances over a number of years. The motive was set out for the judge by counsel for the Applicant. He said the man the Applicant was living with had financial problems, that he needed the money and that he received the funds that the Applicant stole. That together with the admittedly unhappy circumstances of the life of the Applicant are of no value as far as mitigation in a case such as this.

15.The judge's reasoning in assessing the seriousness of each offence and the total criminality of all the offences cannot be faulted. His starting point for the total criminality, although above the maximum sentence which can be imposed in respect of a single offence of theft, was within the guidelines and his reduction of the totality which he then applied to each individual count on the indictment was an appropriate reduction to reflect the mitigation which had been put forward.

16.This application has no merit and the application for leave to appeal is dismissed.

Representation:

Mr Eddie Sean, SADPP (Ag) of the Department of Justice, for the Respondent/HKSAR

Applicant, in person