Lee Lai Hang v. The Queen

CACC000556/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 556 OF 1974

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 19th September 1974.

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JUDGMENT

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Huggins, J.:

1. This is an appeal against a total of three years' imprisonment for four offences. The Appellant was convicted on his own confession on two charges of theft and two charges of causing money to be transferred on a forged document. He was sentenced to one year's imprisonment on the first and second charges and to two years' imprisonment on the third and fourth charges. The last three sentences were concurrent but consecutive to the first.

2. The Appellant is a man of 47 years of age, who has had a responsible job in a company as an accountant. He had previously been working in a similar capacity with other companies. He in 1973, in November, stole a cheque which had been drawn by his company and made payable to bearer and he cashed that cheque and made off with the proceeds. He gambled with the money and lost it. Six months later (and we think this is important) he stole a cheque book from the company. He used many of the cheques to practise forging the signature of somebody who was authorised to draw cheques on the company's account. He then on two consecutive days forged a cheque, each in the sum of approximately $98,500, and paid these into his own account. Not long after that no appears to have appreciated that he would either not get away with it or anyway that he had better start paying this money back, and, having so decided, he withdrew from his account an amount equal to the first of the two forged cheques and paid it back to the company. However, the second amount was still outstanding when the losses were discovered. A report was made to the police and the Appellant was arrested.

3. As the learned judge said, the total sum involved in all the charges did amount to about a quarter of a million dollars but the actual amount which has been lost to the company is $114,570 because not only was the first of the forged cheques made good but a sum of $10,500 was found in the possession of the Appellant upon his arrest and this has been repaid.

4. The circumstances of the case are somewhat unusual. The reasons for the offences were these. The Appellant's wife is a sick woman: she has had operations for cancer. In addition, the Appellant having worked satisfactorily in his present job for some years had reached the top in the Accounts Department, for he had no professional qualification which would enable him to go higher. His employers, therefore, thinking him to be a responsible and satisfactory employee, proposed to move him to another job. Rightly or wrongly, the Appellant got it into his head that this was a move not to his benefit but to his disadvantage. He told the Probation Officer that the job to which he was to be moved, a job for which he thought that he was not ideally suited, had previously never been held by anybody for more than a year. He thought that the move was made so that after he had been in the job for some time his employers could say that he was no longer satisfactory and could dismiss him. He would then be at all age approaching fifty, out of a job and with a sick wife and a family on his hand. The Probation Officer in a very favourable report said that he was unable to suggest what should be done with the Appellant because, as he said, it depended where more weight should be put - on the welfare of the Appellant and his family or on the interest of society. The learned judge took note of what the Probation Officer had said and he referred to these two factors, but he did not expressly in his Reasons for Sentence say where he thought the weight lay. Mr. Woo asks us to infer from the sentences that he thought the interest of society had to be given greater weight than the interest of the family.

5. We have found this a very difficult case to decide. We have considerable sympathy with the Appellant in his difficulties. As we have pointed out, it is against him that having committed one offence he then did not commit any further offence for six months: this was not a case of one series of offences as Mr. Woo suggested to us in connection with the question whether the sentences should be concurrent or consecutive. We are satisfied this was not one series of offences at all: it was two separate offences - or series of offences - and it was perfectly proper for the learned judge to impose consecutive sentences. We find it very difficult to say that the learned judge was at any point in error. Nevertheless we do think that the story revealed in the Probation Officer's report is circumstantial and one which we must accept as representing the true state of affairs. We think that despite the delay between the two series of offences it is clear that this Appellant was under very severe mental stress and we are inclined to accept that this accounts for the offences. We therefore consider that the chances of a repetition are negligible and that the interests of society do not require so heavy a sentence as three years' imprisonment. Nevertheless, as is conceded by Mr. Woo, this is a case where some mark of disapproval has to be made and a custodial sentence is inevitable. Not without considerable hesitation, we have decided that this appeal should be allowed and that a sentence of two years' imprisonment should be substituted. We think that the mechanics of this are not important but that the proper way to do it is to reduce the two sentences of two years' imprisonment to sentences of one year's imprisonment, leaving the rest of the order as it was made by the learned judge.

19th September 1974.

Representation: