Leung Sau-ming v. The Queen
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CACC000594/1982
BETWEEN
Coram: McMullin, V.-P., Li & Silke, JJ.A. Date: 30 November 1982 __________ JUDGMENT __________ Li, J.A.: 1. The applicant was convicted of 7 charges:
2. These are consecutive sentences making a total of 4 years imprisonment. 3. He was also convicted of 4 more charges of uttering a forged instrument for which he was imposed a sentence of 1 year imprisonment each. The sentence for the 4th charge was ordered to be consecutive to the sentences of the first 3 other charges and the sentences on the 5th, 6th and 7th charges were ordered to be concurrent with all other sentences. Thus, the applicant was sentenced to a total of 5 years imprisonment. 4. The facts leading up to the applicant's conviction were that the applicant was employed as an audit clerk with the title assistant accountant in the National Time Limited. Making use of his position he stole a cheque from his employer who had an account in the Chiyu Bank. The applicant then collaborated with an office boy of his company who was able to forge the signatures of the authorized signatories of this company. The office boy cashed that cheque made out in the sum of $51,000 and paid it into the account of the office boy's friend. This "boy" then withdrew three sums of money totalling over $50,000 and shared it with the applicant. That formed the subject matter of the 1st and 2nd charges. 5. Later on, this office boy went to work in a different company by the name of Everlight Company which is a firm of sharebrokers. He worked in the capacity of a messenger boy. He was in a position to know that his new employer was in the habit of applying for a large number of books of cheques in order to conduct their business. Very often, application was made for same 50 to 100 books of cheques at a time. The messenger boy stole an application form, forged the signatures of the authorized signatories of the new company and obtained a total of 40 cheque books on the 9th of November, 1982. He promptly collaborated with the applicant who opened a personal account in another bank. This boy then forged the signatures of the authorized signatories, cashed a series of cheques drawn on the account of the new company and paid the money into the applicant's account. Thereupon, they shared the spoils of these acts of dishonesty. That is the gist of the evidence. 6. The total sum obtained in the first two charges so far as the applicant is concerned is $51,135.01. The total sum obtained by the 2nd series of transactions came to a little over $270,000. 7. In his Reasons for Verdict, the trial judge said that the 1st defendant was in a position of trust. He sentenced him on that basis. 8. In support of his application for leave to appeal against sentence, the grounds advanced are several. No useful purpose will be served in setting them out in detail. Suffice it to say that we have considered them and we come to the conclusion that there has been a misdirection of fact on the part of the trial judge. 9. When he said the applicant was in a position of trust, the trial judge was justified in so holding in respect of the National Time Limited in which the applicant worked as an assistant accountant. As regards the second company, the Everlight Company, the applicant was not in a position of trust. He was a stranger to that company albeit that he collaborated with the messenger boy of that company who stole the application forms to obtain cheque books. There was evidence that the two of them collaborated together and encashed the stolen cheques by means of forgery. 10. The second point we wish to emphasize is that the trial judge in his Reasons for Verdict said: "The offences are serious ones, commencing with DT's admitted stealing of the Chiyu blank cheque which began this series of offences which resulted in D1 enriching himself in an amount of some $270,000." 11. The record in the court below disclosed that there were a total of 19 charges against the applicant originally. Before the Crown closed the case, the applicant had pleaded guilty to the first seven charges and was convicted on his own plea. There were other charges for which the Crown offered no evidence - charges number 8 down to number 19. It may well be that the total money obtained as a result of uttering forged instrument came to something over $700,000. Yet the evidence before the judge and before us was that these two persons obtained a total of some $270,000 which they shared. We observed that having regard to the misdirection about his position of trust and also the series of transaction, we feel that the sentences should be reduced. 12. It is true that separate offence are referred in all the charges. We consider that the first two charges are one transaction. There was an act of theft in stealing the cheque. But the sole purpose for stealing that cheque was to forge the cheque and obtain money. Therefore, the first two charges are in fact two series of acts for one purpose and effectively one transaction. 13. As to the third charge, again the obtaining the cheque books was also for the purpose of perpetrating further offences of uttering forged cheques in order to obtain money. These may be regarded as one series of transactions. This is borne out by the fact that while the stealing of the 40 books of cheques took place on the 9th of November, 1980, the offences charged in counts 4 to 7 - uttering forged document to obtain money - were all committed on the 10th of November, 1980. 14. For this reason, we feel that the sentences of the first two charges should have been concurrent and the sentences of the 3rd, 4th, 5th, 6th and 7th charges should also be concurrent. There is nothing wrong in principle in the sentences of 2 years for the 1st and 2nd charges. Nor is there anything wrong with the sentence of 1½ years for the 3rd charge to be concurrent with the other charges, number 4 to number 7. 15. Cur attention has been directed to suspended sentences having been passed in cases of similar nature in the past. It is pertinent to observe that this court has recently upheld a sentence of ?? years imprisonment in a similar case. Nor do we consider that the lighter sentence received by the co-accused, should affect the issue. This is so even if his involvement in this series of crime is deeper. He was fortunate. 16. We feel that the interest of justice will be served by ordering that the sentences of the 1st and 2nd charges be concurrent. The 3rd charge of 1½ years will be consecutive to the 1st and 2nd charges. The 4th to the 7th charges, sentences will be concurrent with that of the 3rd change. This will make a total of 3½ years imprisonment. We grant leave to appeal against sentence and the appeal is allowed as aforesaid. 17. There has been a direction for loss of time of 60 days when the single judge refused the appeal against sentence. As we allow the appeal to the extent as aforesaid, the order for loss of time will be set aside.
Representation: A.J.J. Sanguinetti (Rowdget W. Young & Co.) for appellant B. Ryan, Senior Crown Counsel, for Crown/respondent |