HKSAR v. Wong Kit Ling and Another

CACC000411/2002

CACC411/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 411 OF 2002

(ON APPEAL FROM DCCC NO. 233 OF 2002)

_________________________

_________________________

Coram: Hon Leong CJHC in Court

Date of Hearing: 11 March 2003

Date of Judgment: 11 March 2003

_______________

J U D G M E N T

_______________

1.The 1st applicant Wong Kit Ling and the 2nd applicant Lam Yuet Siu were jointly charged with two counts of theft (the 1st and 2nd charge), involving $1.5 million and $2 million respectively.

2.The 1st applicant was also charged with a third count of theft involving some $566,257.

3.The 2nd applicant was also charged with two counts of dealing with property known or believed to represent proceeds of theft (the 4th and 5th charge). These charges concerned the amounts in the 1st and 2nd charge of theft.

4.The two applicants were convicted after trial in the District Court of all the charges against them.

5.The 1st applicant was sentenced to 2 years imprisonment on the 1st charge, 3 years and 2 months each on the 2nd and 3rd charge, all sentences to run concurrently, making a total of 3 years and 2 months imprisonment.

6.The 2nd applicant was sentenced to 3 years and 5 months on each of the 1st, 2nd, 4th and 5th charge, concurrent making a total of 3 years and 5 months imprisonment, but consecutive to the 21 months imprisonment the 2nd applicant was then serving.

7.Both applicants apply for leave to appeal against conviction and sentence.

8.The 1st applicant's grounds of appeal against conviction are :

(1) the conviction was not supported by adequate evidence;

(2) the judge did not consider the evidence of the witnesses; and

(3) the judge relied on evidence which is untrue.

9.Her ground of appeal against sentence is the sentence was too long.

10.In her grounds put before me today she reverts to the evidence of the witnesses and the documents before the trial court and states that the evidence should not be accepted by the court. As regards sentence, she asks the court to reduce her sentence in order that she may be with her children and asks the court to take into consideration that she had lost her career, she had no benefit personally and that her husband is now filing bankruptcy petition.

11.The 2nd applicant's ground of appeal against conviction is that there are doubts in the evidence and the trial judge did not give her the benefit of the doubt. She also states that there was a mistake after the judge had handed down the sentence, the judge amended the sentence without following proper procedure.

12.The 1st applicant was a customer service officer of the DBS Kwong On Bank, Yaumati Branch (the Bank). She was custodian of the vault and was responsible, inter alia, for receiving cash from tellers at the close of business, handling time deposit accounts and authorizing tellers to deal with transactions which are larger than the teller's limit. For the latter purpose, she possessed an overriding card to permit the computer to process such over the limit transactions.

13.The 2nd applicant was a friend of the 1st applicant. She maintained with the Bank a personal account and company accounts of her two companies: J's Company and Kim Youth Far East Trading Company.

14.In March 2001, the 2nd applicant paid a deposit of $30,000 on signing a provisional agreement for the purchase of a flat in Tsimshatsui. The purchase price was $11,880,000. This cheque of $30,000 was dishonoured. She subsequently paid the amount in cash. The main deposit of $1,158,000 was not paid on the due date. The completion date was subsequently postponed to 20.8.2001.

15.On 11.7.2001, the 2nd applicant's cheque of $1,158,000 in payment of the main deposit was dishonoured. Be that as it may, the transaction proceeded to completion on 20.8.2001 after the deadline was extended from 5 pm that day to 5.30 pm. But two cheques drawn on the account of the solicitors for the seller WC Lee and the 2nd applicant's cheque in payment of commission were dishonoured.

16.The prosecution evidence on the 1st, 2nd ,4th and 5th charge was this: PW1 maintained an account with the Bank. His wife found out from the July 2001 statement that $1.5 million had been withdrawn from the account on 18.7.2001 without PW1's authority. She queried the Bank. The 1st applicant told her it was a mistake and it would be rectified. PW1 then found out from the August 2001 statement that an amount of $2 million had been withdrawn from his account without his authority. He went to see the manager on 6.9.2001 and met the 1st applicant. She told him it was a mistake and the amount was in fact transferred to PW1's fixed deposit account. But there was no such transfer on the Bank records.

17.On 18.7.2001 the 1st applicant used the computer of PW5, a teller of the Bank, to effect a transfer. The record showed that $1.5 million was withdrawn from PW1's account on that day. Shortly thereafter on the same day, a sum of $1,158,000 was deposited into the account of the solicitors WC Lee and the relevant deposit slip was faxed to the solicitors firm. The slip was in the handwriting of the lst applicant. The 1st applicant told PW5 that the balance of $342,000 would be in cash taken from the vault. PW5 then recorded this amount as cash transfer.

18.On 16.8.2001 at the close of business, PW6, another teller of the Bank, effected a transfer of $2 million to the account of J's Company with an unsigned withdrawal slip. Prior to the transfer, PW6 queried the 1st applicant about the signature. The 1st applicant told her that the slip would be signed by the customer in a couple of days. All the transfer slips for the two days of 15.8.2001 and 16.8.2001 were recovered from the Bank record except the transfer slip of the $2 million transaction.

19.The prosecution also relied on the recorded telephone conversations between the 1st applicant and the 2nd applicant. They did not dispute the authenticity of these conversations. According to these conversations, on 14.8.2001, the 2nd applicant told the 1st applicant that she needed more than $3 million and on 15.8.2001, she told the 1st applicant this was the deadline. When the 1st applicant said that this could not be done, the 2nd applicant told her that it must be done by 17.8.2001. After several conversations on that day, the 2nd applicant asked the 1st applicant if she would agree to transfer $2 million and instructed the latter to transfer it to the savings account of J's Company.

20.There was also evidence that after the transfer of $2 million, the 2nd applicant made twelve separate withdrawals of the money from the J's Company account.

21.The evidence on the 3rd charge was that PW7 deposited $550,000 in fixed deposit with the Bank and instructed the lst applicant to renew the deposit principal and interest automatically every month. The Bank's overriding transaction record shows that on 8.12.2000, the whole amount then standing in the account was transferred in two separate sums into the account of the 1st applicant's husband, one of these sums was authorized by the 1st applicant using her overriding authority. The record shows that over a period of months thereafter, the 1st applicant carried out a series of renewing the deposit and subsequently, effecting an error correction to cover her theft.

22.The 1st applicant gave no evidence. The 2nd applicant's evidence was that after the $1,158,000 cheque was dishonoured on 11.7.2001, her Malaysian friend came up with funds and she took $1.16 million in cash to the Bank and handed it to PW5 with instruction to deposit $1,158,000 into the account of WC Lee. PW5 gave her a deposit slip of that amount together with $2,000 change. However, she was unable to produce this deposit slip.

23.She also said the Bank had approved a grant of loan facilities and overdraft totaling $15 million. But the correspondence between the Bank and the solicitors showed that the Bank's approval was subject to her making funds available and she had not been able to do so. She also relied on a mortgage application but the Bank remarked on the application that she was unwilling to provide written details of her total assets.

24.Her evidence was also that on 15.8.2001, her buyer had through their Singapore manager brought to her cash $800,000 and a deposit slip of $2 million but she was unable to produce the deposit slip in respect of the amount of $2 million.

25.The judge found that there is nothing to undermine the prosecution evidence, all of which she accepted as sound and reliable.

26.The judge relied on the evidence of PW5 and PW6 and the telephone conversations between the two applicants and convicted them of the 1st and 2nd charge.

27.The judge found that 1st applicant dishonestly effected the transfer of the amount in the 3rd charge into her husband's account and covered her theft with a series of making deposits and error corrections. She convicted the 1st applicant of the 3rd charge.

28.On the 4th and 5th charge, the judge inferred from all the evidence that the 2nd applicant had :

"willfully encouraged and prevailed on Dl to steal a chose in action and credit $1,158,000 for the second deposit on her property purchase into WC Lee's account so that it could be paid in time. D2 was not concerned how D1 achieved this but knew the credited sum came from a theft."

29.The judge's conclusion is :

"the evidence shows a course of criminal conduct with D2 willfully encouraging and prevailing on D1 to put her in funds which she readily used knowing they were proceeds from theft. I am satisfied the evidence against the defendants are overwhelming."

30.The judge convicted the 2nd applicant of the 4th and 5th charge.

31.In my opinion, it is clear that the judge had rejected the evidence of the 2nd applicant. The judge accepted the prosecution evidence and her conclusions are findings of facts and there was ample evidence to support the findings. There can be no arguable grounds on appeal against conviction in both the 1st and 2nd applicants' case.

32.Both applications for leave to appeal against conviction are dismissed.

33.On sentence, the judge accepted the 1st applicant had worked hard to achieve her position as senior officer in the Bank and she committed the offences not out of personal greed but to help her family and friend.

34.The amount involved in the case of the 1st applicant was over $4 million in total.

35.The amount involved in the case of 2nd applicant was $3.5 million but she had three previous convictions all involving dishonesty.

36.The sentencing guidelines for breach of trust in R v Trevor Clark [1998] 2 Cr App R 137 adopted in SJ v Wong Kay Din CAAR No.7 of 1998 (unreported) show that for the amounts involved in the present charges the sentence would be in the region of 3 to 4 years.

37.As regards the mistake the 2nd applicant has stated, the judge found out that she had added the words "by one month" at the end of passing sentence but in my opinion, the added sentence had no specific meaning and that does not add anything to the sentence which was passed.

38.The total sentence of 3 years and 2 months of the 1st applicant who has a clear record and had stolen over $4 million is well within the guidelines.

39.The total sentence of 3 years and 5 months imprisonment of the 2nd applicant who has three previous convictions involving dishonesty and who had personal gain through the thefts is also well within the guidelines. Taking into consideration the sentence she was also serving at the time of sentencing on a totality basis, the sentence imposed cannot be argued as manifestly excessive or wrong in principle.

40.The applications for leave to appeal against sentence of both applicants are dismissed.

Representation:

1st and 2nd Applicants - in person.

Mr Jonathan Man, Senior Government Counsel, for HKSAR/Respondent.