HKSAR v. Fok Chiu Ming

CACC000414/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 414
(Criminal)

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Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A. in Court

Date of hearing: 17 March 1998

Date of delivery of judgment: 17 March 1998

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant pleaded guilty to 31 charges of forgery. He was sentenced by Leong, J. to a total of 5 years' imprisonment. He now seeks leave to appeal against the sentence.

2. The Applicant was employed as an accountant by a company called Hing Cheong Metals. His duties included all liaison between the Belgian Bank and Hing Cheong, including updating as necessary, the names, salary levels and recipient bank details for the autopay of salaries. In addition, the defendant had custody of all company invoices, vouchers and bank statements. To keep a financial overview of Hing Cheong, POON Chak-keung, the overall financial controller of Shougang Concord required the defendant to submit a monthly statement detailing the sales and purchases of brass, and the income and expenditure of Hing Cheong. The monthly statements disclosed a healthy cash flow.

3. The company cheque books were kept under lock and key by Ms Yeung one of the Applicant's colleagues. When she took leave in May 1995 the Applicant was given the custody of the keys. After her return to work eight cheques were found to be missing and Ms Yeung asked the Applicant to stop payments on the cheques. In July 1996 Ms Yeung discovered that the drawer in which the cheque book was kept was open and another key was in the lock.

4. In November 1996 the Applicant went missing from work. Ms Yeung was instructed to reconcile the details on the cheque stubs with the company's bank statements with the Belgian Bank. At the same time one of the directors of the company checked the autopay statements. It was discovered that there was a huge disparity between the financial situation which had been reported to the directors by the Applicant and the actual state of the company's bank account.

5. The autopay records and some of the cheques which had been returned by the bank had signatures on them which were not the signatures of the authorised signatories.

6. The total of the shortfall as reflected in these charges was in excess of $13 million. The period over which the Applicant had committed these offences was of the order of 18 months.

7. It was discovered that the Applicant had fled to China. A report was made to the police who in turn communicated with the Chinese Authorities. Arrangements were then made for the Applicant to be returned to Hong Kong where he was arrested on arrival.

8. It is true that after his arrest he co-operated with the police and made three statements to the police admitting the offences. The company took civil action against the Applicant and obtained an order restraining his assets which included the flat he lived in with his wife. The total of the assets restrained was approximately $2 million.

9. The Applicant claimed to have spent all the money in riotous living. Understandably it would appear that Leong, J. found difficulty in believing this. He was of the view that the only mitigating circumstances was the Applicant's co-operation and pleas of guilty.

10. Although the sentences imposed by Mr. Justice Leong, J. were severe they reflected the fact that the Applicant had grossly abused the position of trust reposed in him. We do not consider that the starting point was excessive having regard to all of the circumstances of the case.

11. The judge adopted a starting point of seven years for all of the offences. He gave a two-year discount for the pleas. He did not give any reasons for not giving the usual discount of 1/3. Had he given the full discount the total sentence would have been 4 years 8 months. The Applicant was entitled to this. Treating the application as the appeal we quash the sentences of 5 years' imprisonment and substitute in their place sentences of 4 years 8 months' imprisonment in each case. To this extent this appeal is allowed.

Representation:

Mr. K.S. Kripas, (D.P.P.) for Respondent

Fok Chiu-ming, Applicant in person