R. v. Leung Chu Tim, Bobby

CACC000644/1996

IN THE COURT OF APPEAL

1996, No. 644

(Criminal)

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Coram: Bokhary, Mortimer & Liu JJA in Court

Date of hearing: 30, April 1997

Date of judgment: 30, April 1997

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J U D G M E N T

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Bokhary JA:

1. This applicant, a man in his late 30's and of previous good character, used to be a probate clerk with a firm of solicitors. His responsibilities included preparing vouchers for the purpose of effecting payments to the beneficiaries of estates handled by the firm.

2. In each of a large number of instances, what he dishonestly did instead was to prepare false vouchers to effect payment to an associate of his rather than to the beneficiary entitled to payment out of the estate in question.

3. As a result, he found himself facing 13 charges of false accounting. All the charges were laid under s. 19(1)(b) of the Theft Ordinance, Cap. 210, which has to do with furnishing false information in any account or any record or document made or required for any accounting purpose. The documents here were of course the false payment vouchers.

4. Brought before His Honour Judge McMahon in the District Court, the applicant pleaded guilty to ten charges. They were the 1st to 4th, 6th, 8th, 9th and 11th to 13th charges. That was on October 14 last year.

5. A background report was sent for. And sentencing took place on the 4th of the following month.

6. The judge sent the applicant to prison for five years. He did so by way of concurrent terms of 2½ years on all the charges except for the 13th charge and a consecutive term of 2½ years on that charge.

7. We now have the applicant before us seeking leave to appeal against his sentence totalling five years.

8. Having noted that "the total amount obtained by [the applicant] in respect of the charges to which he pleaded guilty was $4,300,000 odd", the judge continued thus:

" I am told those charges are sample offences only, and with the consent of the defence, am asked to sentence on the basis that an aggravating factor in this case is that the total amount of payments as a result of false documentation presented by the defendant was about $12 million, of which about $2 million was a circularisation of funds within accounts, and about $10 million being, in fact, obtained by the defendant through these and similar offences. No significant repayment has been made and that sum is apparently still outstanding.

Accordingly, I will sentence on that basis. I take the systematic nature of the fraud into account in treating each offence the same so far as starting point is concerned. In my view, where offences are systematic in nature, there is little purpose in principle or fact in allocating different starting points to particular offences. I take into account also, as aggravating factors in arriving at a starting point of sentence for each charged offence, the gross breach of trust involved as well as the systematic nature of the offences."

It is to be noted that the defence in effect asked the judge to take into consideration also the criminality beyond the actual charges, and that the judge did so.

9. The judge then dealt with the precise way in which he arrived at the total sentence which he ultimately imposed. As to that, he said this:

" Accordingly, in respect of each offence, I take a starting point of 3½ years' imprisonment. I take into account the various factors advanced in mitigation on behalf of the defendant, particularly his plea of guilty and his otherwise clear record. I take into account, also, the particular family circumstances of the defendant and the effect these offences will have on his family - his wife being pregnant - and his career.

On the basis of the matters advanced in mitigation, I reduce the starting point in respect of each offence to 2½ years' imprisonment. Taking into account the totality of sentence, I order that all sentences be served concurrently with each other, with the exception of the sentence imposed in respect of charge 13, which is to be served consecutively to all other sentences. That is a totality of 5 years' imprisonment."

10. Appearing before us and addressing us with ability and courtesy, the applicant makes a number of points. The first one is raised in a rhetorical fashion. Why, asks the applicant, did the judge impose a consecutive term on the 13th charge? Well, it may well be because of the amount involved in that particular charge. In any event, we are more concerned with the actual result rather than the way in which the judge arrived at that result.

11. Secondly, the applicant says that as best he can tell by a newspaper account, his sentence is too high as compared with that imposed upon another man. Well, the facts of cases are infinitely various. And we do not regard that other case as of any help to this applicant.

12. Thirdly, he says that he had suffered an accident which has resulted in orthopaedic permanent disability and the prospect of further surgery. While that may be true, it is of limited effect in a case such as this. There is perhaps some effect when it comes to the applicant's fifth point.

13. Before that, there is a fourth point which he has advanced. It is that he suffers psychological stress. No doubt, the things that have happened to him - as a result of his own crimes, it must be added - will have an adverse effect on him in a number of ways. But that is part and parcel of what happens when offences like this are committed.

14. Fifthly and finally, the applicant says: that his orthopaedic problems make it difficult for him to get about and therefore get employment which involves mobility; and that his convictions for these offences make it impossible for him to get employment of the sort that he used to enjoy. All of that is no doubt true. But we have no reason to think that the judge did not have regard to those matters. It is clear that the judge considered this case with care.

15. And the conclusion to which we come is that the judge has imposed a severe sentence but one which is within the wide range encompassed by the discretion of a sentencing judge.

16. In the result, leave to appeal against sentence is refused.

Representation:

Mr J Reading (of the Attorney General's Chambers) for the respondent

LEUNG Chu-tin, Bobby, applicant in person