Yip Yuk-kin v. The Queen

CACC000521/1977

Coram: Briggs, C.J., Huggins, J.A. and Leonard, J.

Date of Judgment: 12th July, 1977.

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JUDGMENT

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1. The appellant pleaded guilty to six counts of theft of a total sum of $708,076.00 and was sentenced to two years' imprisonment on each count, the sentences to run concurrently. This is an appeal against that sentence.

2. The appellant was formally a partner in and the accountant of two firms of stock-brokers. These firms were family businesses and the other partners were sleeping partners. In 1974, the appellant purchased an expensive flat. This aroused the suspicion of his father who demanded that he be furnished with a copy of the accounts of the firms. It was found that the appellant had kept no proper accounts. The thefts were also discovered. Between January 1972 and April 1973 the appellant had signed six of the firms' cheques in his favour, the amounts being credited to his and his wife's joint account.

3. The appellant was immediately dismissed and left Hong Kong for Malaysia.

4. The appellant is the eldest son of the family and aged 37. He was partly educated in Australia. He is married with two children. The appellant contributed $40,000 to the partnership and was entitled to a 5% share in the profits. His salary was $2,250 per month. He has a clear record.

5. This court has in several cases of this sort stated that such an offence should attract an immediate custodial sentence in all except the rarest cases. In passing sentence the trial judge took into consideration the fact that the appellant had returned to Hong Kong voluntarily in April 1977 and that he had pleaded guilty. He also recorded that the appellant had restored $400,000 to the partnership.

6. Mr. Litton, in an eloquent and able plea on the appellant's behalf, has urged further matters in mitigation which were not put before the judge. The wrong figure of the amount which has been restored was given in the court below. In fact nearly 85% of the sum stolen has been restored. The appellant has become reconciled with his family who have totally forgiven him and he is extremely remorseful for what he has done.

7. Mr. Litton also drew attention to the fact that these thefts were thefts from family businesses. He suggested that the mens rea in such a case could be said to be less than if the thefts had been from an employer or a public company. The tradition of joint family property which exists in Hong Kong may be said to weaken the sense of separate property rights.

8. Various cases of a similar nature were referred to including two Applications for Review, where the sentences passed were lower than that passed in this case.

9. Mr. Litton urged that we should suspend the sentence passed by the court below. We do not think that we can do this. This is a serious breach of trust and one which, we think, calls for an immediate custodial sentence. However, in view of what has been put before us by way of further mitigation, we think that justice will best be done if we allow the appeal to the extent that the sentence is reduced to twelve months' imprisonment. And we so order. The sentence will run as from the date of conviction.

Representation:

Litton, Q.C. & A.R. Suffiad (P.H. Sin & Co.) for appellant.

Cahill for crown.