Cheung Yu Shing v. The Queen
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CACC000592/1969 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 592 OF 1969 -----------------
Coram: Rigby, S.P.J. Date of Judgment: 6 September 1969 ----------------- JUDGMENT ----------------- 1. This is a particularly sad case. The appellant pleaded guilty to 6 charges of embezzlement preferred against him; and asked for a further 7 offences of precisely the same nature to be taken into consideration. It is sufficient to say that he was sentenced to a term of imprisonment and he appeals against that sentence. 2. The appellant is a married man, aged 53. He has 4 children ranging in age from 18 to12 and all of whom, I understand, are at school. He is a government servant and has in fact been a government servant for the last 19 years. 3. The brief facts of the case were that at the material time he was employed as a clerk and posted to the Police Accounts Office. His duties apparently included a responsibility for the electricity and gas accounts for all police stations in the Force. He had to keep payment of bills; keeping of the electricity consumption registers and recovery of electricity charges prepaid by Government. 4. The books were checked some time in July, 1969, and it was found that a number of receipt in respect of cash payments which had apparently been made to him in connection with the electricity charges for the Police Central Laundry Room, were not recorded. Further enquiries were made and it was established that in fact monthly payments had been made to him but he had not remitted those payments to the Electricity Authority. This had been going on for the first 6 months of the year 1969; and for the previous 7 months of the year 1968. The sums of money involved varied from a maximum monthly amount of $300 to a minimum of just over $150; and the total amount involved was $2,867.83. 5. It would appear that the appellant has for some considerable time been a very sick man and I was informed by Mr. Ming Huang, who appeared for him, that immediately after he had been sentenced on the 27th July, he was admitted to Hospital and was there until the 18th August. He was then removed to the medical ward at Stanley Prison, and from there was transferred to the medical ward at the Victoria Remand Prison, pending the hearing of this appeal. It was apparent - when he came before me - by looking at him that he was, in truth, a sick man and I adjourned the case in order that I might have a full medical report both from the doctor at the Queen Mary Hospital - who had been looking after him - and from the Prison Medical Officer. 6. I adjourned the case to today. Two or three days ago I received a report from the Commissioner of Prisons enclosing a medical report indicating that the appellant had been again transferred to Queen Mary Hospital, that he was in a serious condition and unable to appear here today. The report of the Prison Medical Officer is before me and I have myself taken the liberty of personally communicating with him. It is unnecessary to go into the details of the report but it is sufficient to say that he is in an extremely serious condition. A remarkable feature of the report is that the doctor states in his report - and he has confirmed it to me - that the appellant is a long-standing drug addict. No mention of this was made at the proceedings before the learned magistrate nor, indeed, was it mentioned before me when the case first came before me. Whilst it does not mitigate the nature of the offences which he committed, it no doubt explains the reasons why he found it necessary to embezzle these sums of money, namely, to pay for the drugs to which he was addicted. Having regard to the medical report, which is before me, I am satisfied that this is an entirely proper case in which I should set aside the term of imprisonment imposed upon the appellant, conditional upon his entering into a bond, under Section 36 of the Magistrates Ordinance, in the sum of $500 to be of good behaviour and to appear at any time when called upon during the period of the next 12 months. 7. I may say that there is some precedent for the making of such an order in circumstances such as these, and it is to be found in Samson's case (Criminal Appeal No. 507 of 1966), although it is true that a slightly different order was made in that case. On the assumption that the appellant is prepared to enter into this bond, I propose to make an order that he should do so, if and when he is discharged from hospital. 8. The appeal will accordingly be allowed to the extent I have indicated above; namely, that the sentence of imprisonment imposed upon him will be set aside conditional upon him entering into a bond, himself in the sum of $500, to be of good behaviour and to appear for sentence any time if called upon within the next twelve months. Representation: Ming Huang (Steven Lo & Co.) for Appellant. Penlington, P.C.C. for Crown/Respondent. |