Poon Siu-ying v. The Queen

CACC000461/1977

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Coram: Zimmern, J.

Date of Judgment: 18th May, 1977.

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JUDGMENT

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1. On 31st March, 1977 in the Magistrates Court at Tsuen Wan this Appellant pleaded guilty to 10 charges of theft, 8 charges of forgery of documents and 8 charges of uttering same on divers dates between 25th October and 17th November, 1976 both dates inclusive. After obtaining Probation Officer's Report the learned magistrate sentenced the Appellant on the 10 theft charges to 2 months each to be served consecutively i.e. a total of 20 months and on the 8 forgery and 8 uttering charges to 4 months each to be served concurrently.

2. The facts are simple. The Appellant was in October, 1976 employed by a firm dealing in photographic products as a book and shop-keeper. He obtained delivery order forms of the firm for the supply of cameras and lenses to the firm, forged his employer's signature thereon, took them to dealers which supplied his employer and obtained various cameras and lenses and promptly pawned them. He did this 10 times over this period I have mentioned. There were only 8 forgery and uttering charges because 2 forms have been lost. He was found out by his employer as to 3 of these transactions on 17th and 18th November, 1976 and admitted them. He made restitution to his employer in the sum of $3,826.90 but hid the other 7 transactions. The employer did not report to the police. The police however through routine investigations caught up with him and he was arrested early February, 1977. He confessed and all the cameras have been recovered save one in respect of which the Appellant has paid $1,000.

3. All these charges are really duplicate allegations of the same substance. Theft by a servant. The forging and uttering were the means to an end - obtaining the cameras and lenses. For the purposes of sentencing it is the overall picture which matters and that the duty of the Court is to decide what the overall sentence should be. (See R. v. Brown⁽¹⁾)

4. The learned magistrate showed the right approach when he said he considered that a total of 20 months' imprisonment was appropriate but then imposed 2 months consecutive on each of the 10 charges of theft. On the facts, two months for theft is hard to reconcile with 4 months each for forging and uttering. Miss Kao, for the Appellant, argues that on two dates he uttered two forged forms at the same suppliers and obtained two lots of goods at the same time on each date. She argues the sentence for these surely ought to be concurrent.

5. In all the circumstances of this case I am of the opinion the proper overall sentence to be 15 months' imprisonment. Appeal allowed. Original sentence set aside and substitute a sentence of 15 months' imprisonment concurrent on each of the theft charges and one day concurrent on each of the forging and uttering charges, totalling 15 months.

Representation:

Mary Kao (W.S. Lo & Co.) for Appellant

Sharwood, S.C.C. for Crown.

(1) [1970] 54 C.A.R. 176