HKSAR v. Lam Wai Hung

CACC 5/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 5 OF 2006

(ON APPEAL FROM DCCC NO. 565 OF 2005)

----------------------

BETWEEN

--------------------

Before : Hon Stock JA and Tang JA in Court

Dates of Hearing : 19 April 2006

Date of Judgment : 19 April 2006

----------------------

J U D G M E N T

----------------------

Hon Stock JA (giving the judgment of the Court):

1.This is an application for leave to appeal against sentence.  The applicant pleaded guilty to five out of seven charges in the District Court and on 20 December 2005 he was sentenced by Deputy District Judge A Yuen to a total term of three years four months’ imprisonment.

2.The applicant was employed as an accounting clerk in a company called Sun Uses (HK) Limited, and was responsible for the handling of daily monetary transactions.  Over a period of almost two years he misappropriated a total sum of $888,899 by falsifying 21 company cheques.  To these offences he pleaded guilty.  At the time of the offences he was aged 39 years and was a person of previous good character.

3.The first two charges were charges of using a false instrument contrary to section 73 of the Crimes Ordinance, Cap 200; and Charges 5, 6 and 7, to which the applicant also pleaded guilty, were charges of theft.  It was the applicant’s function in the course of his employment to prepare cheques for the signature of the husband and wife owners of the company and for those cheques to be handed back to him for processing.  Alternatively it was the habit of the owners occasionally to sign blank cheques to be kept by the applicant for completion when necessary in order to discharge certain company debts.  After the applicant's dismissal in 2003, it was discovered that certain of the company cheques had been paid to a securities company with which Sun Uses had had no dealing and this led to further unravelling displaying a significant number of cheques, all in all totalling $888,899, that had been paid into other accounts in respect of which there had been no business dealing.  Of these 21 cheques, 20 had been deposited into the accounts of three securities companies in which the applicant had made investments for settling his stock trading and the remaining cheque was paid into an account belonging to the applicant's wife.

4.It has not been easy from the summary of facts to discern exactly the methodology used by him but it would seem that the applicant utilised three devices.  In respect of cheques which had already been signed by the owners, he would alter figures on certain of the cheques to ensure that the total amounts payable to particular creditors were in fact paid but he would then alter other cheques to ensure the payments of the sums represented in them to the securities companies or to his wife.  In the case of two of the cheques he utilised cheques that had been signed in blank and thereon he typed an amount and the payee to his suiting.  There was a third method of fraud used in relation to two further cheques, by which he made false entries in counterfoils.

5.The applicant was arrested in August 2003 and he admitted the dishonesty which we have described.  He said that he had been engaged in stock trading and that he had used the altered cheques to make deposits for this purpose but that he had lost most of the money.

6.The judge noted that this was a breach of trust case and that the offences had been committed over a period of almost two years.  In relation to the first two charges, he adopted a starting point of 12 months’ imprisonment for each and imposed a term of eight months’ imprisonment to give effect to the plea of guilty ordering those terms to run consecutively to each other.  In relation to the three theft charges, he took a starting point of three years’ imprisonment and reduced it to two years because of the plea of guilty ordering those terms to run concurrently but consecutively to the terms imposed in relation to the first and second charges; thus making a total term of imprisonment of three years and four months’ imprisonment.  This is equivalent to an overall starting point of five years’ imprisonment.

7.The sole ground of appeal is that the totality was manifestly excessive.  We agree.  This was a breach of trust case and looking at the guidelines suggested by Trevor Clark [1998] 2 Cr App R 137, and by Secretary for Justice v Wong Kay Din CAAR 7 of 1998, 9 September 1999, unreported, albeit bearing in mind comments in Chan Kai-chung CACC 12/2001, 29 June 2001, unreported, the overall starting point adopted by the sentencing judge was on any view significantly in excess of that warranted by the sums involved in this case.  It is true that whilst .the sums involved are important, they are not the sole consideration and that included in the matters to be taken into account are the quality and degree of trust reposed in the offender, including his rank; the period over which the fraud or thefts have taken place; the use to which the money dishonestly appropriated has been put; and the applicant's own history: see Barrick (1985) 81 Cr App R 78, 82.  In this particular case, whilst we have little information as to where in the employee hierarchy the applicant stood, his task placed him in active handling of daily monetary transactions and therefore the degree of trust reposed in him was considerable.  Moreover the offences were committed over an extended period and he utilised the money to fund his own risky purpose.  There has been no suggestion of any repayment or attempted repayment.  In the circumstances a significant term of imprisonment was warranted but having considered the guidelines as well as quite a large number of cases to which our attention has been drawn, we have come to the conclusion that there was no justification for the length of the sentence imposed, a length that was somewhat out of kilter with comparable cases.  We think that an appropriate starting point, overall, was one of three years’ imprisonment and that the resulting sentence should be one of two years’ imprisonment.

8.Accordingly, we grant the applicant leave to appeal against sentence and, treating the hearing of the application as the appeal, we allow the appeal in relation to the sentences imposed and amend the order made by the sentencing judge by ordering that the terms imposed in relation to the individual offences to which the applicant pleaded guilty should all run concurrently, making a total of two years’ imprisonment.

Mr Phillip Ross assigned by D.L.A. for Applicant

Mr Vincent Wong, SGC, of the Department of Justice for Respondent