HKSAR v. Lau Kam Wing

CACC000505/1999

CACC 505/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 505 OF 1999

(ON APPEAL FROM DCCC 207/1999)

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Coram: Hon Stuart-Moore CJHC (Ag), Mayo VP and Leong JA in Court

Date of Hearing: 1 February 2000

Date of Judgment: 1 February 2000

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant pleaded guilty to 13 counts of theft before Deputy Judge Thomas in the District Court. He was sentenced to 4 years imprisonment on 24 May 1999. He now seeks leave to appeal against the sentences imposed out of time. No satisfactory explanation has been forthcoming as to why the application was not lodged timeously. It is only in exceptional circumstances that the court will consider an application which does not comply with the requirements in this connection.

2. We will however comment shortly on the merits of the application. The applicant through his own good efforts and diligence was promoted to a position of trust with his employers. He became the manager of a warehouse where valuable articles of clothing were stored.

3. Over a period of approximately two years the applicant stole clothing worth just over $5.3 million. He sold them and pocketed the proceeds. The proceeds amounted to slightly in excess of $1.1 million. It would appear that the main reason for the applicant's fall from grace was his predilection to gambling. There can be no doubt that the applicant and his family had suffered considerably as a consequence of his misdeeds. In addition to losing his job his employers took civil action to freeze the flat owned by him where he and his family resided.

4. The Judge gave the applicant a full 1/3 discount for his pleas and co-operation. On the basis of the totality of the sentence this would have indicated a starting point before discount of somewhere in the region of 6 years imprisonment.

5. Having regard to the flagrant breach of trust and the very high value of the articles stolen it cannot be said that this starting point was excessive under the Trevor Clark [1998] 2 Cr. App. R. 137 guidelines or those referred to by the Court of Appeal in HKSAR v. Wong Kay-din, unreported being CAAR 7 of 1998.

6. Even if this application had been made in time it would have had no prospect of success.

7. The application for leave to appeal out of time is dismissed.

Representation:

Ms Louisa Lai, SADPP (Ag) of the Department of Justice, for the respondent

Mr Eric Kwok, instructed by the Legal Aid Department, for the applicant