The Queen v. Sum Ying-fat

HCMA000173/1989

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BETWEEN

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Coram: Hon. Bewley J. in Court

Date of hearing: 9 March 1989

Date of delivery of judgment: 9 March 1989

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J U D G M E N T

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1. The appellant pleaded guilty to four charges of theft before Mr. White in North Kowloon Magistrates Court and was ordered to be detained in a Detention Centre.

2. It was a crime that had little or no prospect of escaping detection. The appellant shared a room with the victim. The latter asked him to withdraw some money from his savings account in the Hong Kong and Shanghai Bank on his behalf. He wrote his signature on a piece of paper and gave it to the appellant. The latter forged the victim's signature on the withdrawal slip and withdrew the money.

3. In September last year the victim owed him money. The appellant stole his savings account book and, on three occasions within the next few days, forged the victim's signature in the course of withdrawing a total of $8,400 from three different branches of the bank. He then threw away the passbook. Unbelievably he deposited the money in his own account in one of those branches!

4. In due course the victim discovered his passbook was missing, but by then the appellant had moved out of the apartment and returned to live with his family. A report was made to the police and the appellant was arrested when he eventually appeared at his own branch of the bank. He was cautioned and made a full admission.

5. He was unrepresented in the magistrates court and there was some confusion about restitution. At the first hearing he told the magistrate he had repaid the money. The case was adjourned for reports. After passing sentence the magistrate made a restitution order and ordered the $3,000 bail money to be returned to the bank in part payment.

6. In fact the appellant tried to repay the victim, but failed to find him at the apartment house. Thus only $3,000 has so far been repaid. The appellant is represented on appeal and counsel is in possession, of a cashier order for $8,400, which he undertakes to exchange for one of $5,400 and make full restitution to the bank forthwith.

7. The appellant has an unhappy background. He was born in Hong Kong, but his father died when .he was an infant. He and his sister were placed in the care of an aunt in China and did not return to Hong Kong until 1983, when he was 18. His mother remarried soon after her bereavement, but her second husband died four years ago.

8. The appellant lived with his mother, sister and half-brother until 1987, when he moved to the apartment house, which was nearer to his place of work. He was working as a renovation worker, earning an average wage of $7,000 per month, out of which he gave his mother $1,200 per month. He opened a savings account as soon as he arrived in Hong Kong and has made regular deposits - apart from the proceeds of the thefts. His credit balance today is $18,418.

9. In spite of the above and the fact that this is his first offence, the appellant failed to impress the probation officer, who found him defensive and evasive and did not recommend him for probation.

10. The Correctional Services Intake Officer was more generous in his assessment that the appellant is socially and educationally backward, immature and weak-willed.

11. The appellant has now been in the Detention Centre for nearly two months. I think he has been sufficiently punished for his greed. His family are in court and have shown their support. There is no doubt that the appellant needs help in avoiding future temptations of a similar nature. This, to my mind, can best be achieved by a period of probation.

12. The appeal is allowed, the Detention Centre order set aside and a probation order for 18 months substituted therefor.

Representation:

Hiss C. Fung, C.C., for Respondent

Mr C.Y. Li, M/s Samuel Lam & Co., for Appellant