HKSAR v. Yung Tung Keung Leonard

[English Translation – 英譯本]

HCMA 515/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 515 OF 2007

(ON APPEAL FROM ESCC NO. 1552 OF 2007)

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BETWEEN

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Before: Hon Barnes J in Court

Date of Hearing: 10 July 2007

Date of Judgment: 10 July 2007

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JUDGMENT

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1.The appellant was convicted on his own guilty plea on 12 counts of “theft”, contrary to section 9 of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong, and was sentenced to 24 months’ imprisonment. He now appeals against sentence.

Facts of the case

2.The facts showed that, between 28 February 2003 and 3 December 2004, the appellant, being an executive with the Mortgage Loan Department of Manulife (International) Ltd. (MIL), appropriated for his own use the money, in the region of $800,000, that his colleagues used to pay for mortgage repayments, property valuation fees and legal fees. The modus operandi adopted by the appellant was:

(1) He asked the payer to leave the “payee” column on the cheque blank and undertook to fill it in properly for the payer; and

(2) He altered the particulars of the “payee” which were filled in personally by the payer.

Appellant’s background

3.The appellant is aged 48 and has a clear record. He is well educated, holding an MBA diploma. He is single and, since the offence came to light, has moved back to his parents’ home and lived on comprehensive social security assistance. His father suffers from senile dementia.

4.The appellant suffered loss in his investments and hoped to recover the loss by embezzling the company’s funds. Not only has he not repaid the stolen moneys, but he also owes tax payment of about $200,000.

Reasons for sentence

5.In sentencing, the magistrate took into consideration the facts of the case, which he found serious. The appellant held an important position in the company but committed a breach of trust by misappropriating funds in his custody. Besides, the theft persisted for a period of time and involved a sizeable amount of money. The magistrate had also taken into account the fact that the appellant stole the moneys in order to make highly risky investments. The moneys that he had stolen were for mortgage repayments for domestic premises. The mortgagors concerned might, as a result, lose their homes.

6.Having referred to the principles set out in the English case R. v. Barrick 81 Cr. App. R 78, the magistrate adopted a global starting point of 3 years and sentenced the appellant to two years’ imprisonment.

Grounds of appeal

7.The main ground of appeal raised by the appellant is that the theft he had committed had not exposed the payers to the risk of losing their properties. This is because under the mortgage scheme of MIL, MIL not only paid the purchase price of the property concerned for its employees and became the property owners, but it also, like the normal banks, let the employees repay the mortgages by monthly instalments (at a low interest rate). The appellant issued company receipts as soon as he received the cheques, and the payers had in fact not been exposed to any risk by reason of his theft, because their situation was different from that of the general mortgagors of bank mortgages.

8.The appellant also relied on the English case R. v. Trevor Clark 2 Cr. App. R. 137 and argued that since the amount involved was approximately equivalent to £50,000, the starting point of 3 years adopted by the magistrate was manifestly excessive.

9.The appellant also put forward as a ground for mitigation that it was already two years after the offences came to light when he was prosecuted.

Respondent’s response

10.Miss Lily Ho, Senior Government Counsel for the respondent, accepted and agreed, after making enquiries, with what the appellant submitted about the mortgage scheme of MIL. In this case, the payers had in fact not been exposed to the risk mentioned by the magistrate.

Judgment

11.In Barrick, the English Court of Appeal set out the various factors relevant to the determination of the proper level of sentence and laid down sentencing guidelines.Later, in Trevor Clark, the English Court of Appeal considered the appropriate sentencing guidelines afresh. Apart from taking into account the effect of inflation, the Court of Appeal also took cognizance of the fact that since 1985 the maximum sentence for theft in the UK had, following amendments to the Theft Act, been reduced from 10 years to 7 years.

12.The Court of Appeal in Hong Kong has also considered Barrick and Trevor Clark. The sentencing factors set out in Barrick are applicable to Hong Kong, but in determining the appropriate sentence, the sentencer must not apply the sentencing considerations in the UK to cases in Hong Kong slavishly “like a copycat” as the Hong Kong courts must have regard to local circumstances and conditions. Furthermore, in considering the sentencing guidelines laid down in Trevor Clark, the court also has to take note that in Hong Kong the maximum sentence for theft is still 10 years.

13.The amount involved in the theft is one of the factors, but not the only factor, to be considered in determining the sentence. However, in the present case the magistrate had indeed misunderstood the effect of the offence on the mortgagors.

14.In my judgment, this case can usefully be compared to HKSAR v. Yuen Kwok Kei (袁國基), CACC 336/2005. The appellant in that case had on a number of occasions between June 1994 and April 1998 misappropriated the funds of the company’s clients and sold their shares without their permissions. There were 12 victims in total and the amount involved was about $2 million. The appellant also had a clear record and stole the moneys because he had suffered loss in investments. Having considered Barrick, Trevor Clark and other Hong Kong cases, the Court of Appeal held that the starting point of 6 years adopted by the trial judge was too high and that the appropriate starting point was 4½ years.

15.In the present case, the amount stolen by the appellant was slightly less than $800,000 and the offences were committed within a period of about two years. The circumstances of this case are evidently not as serious as those in Yuen Kwok Kei.

16.Having considered all the circumstances, I am of the view that the appropriate global starting point is 2½ years’ imprisonment. The appellant is given one-third discount for his guilty plea. The global sentence should be 20 months’ imprisonment.

17.As for the contention that the appellant was not charged until two years after the offences came to light, I agree with the view and ruling of the magistrate. This type of cases certainly requires a longer period of time than usual in preparing for trial. I am not satisfied that there has been such a “delay” in the present case which constitutes a valid ground for mitigation.

18.To achieve the objective of imposing a total sentence of 20 months’ imprisonment, I order that the sentence imposed by the magistrate be quashed and replaced by the following: a sentence of 20 months’ imprisonment be imposed for each of Charges (1) to (12), with all sentences to be served concurrently, making a total sentence of 20 months’ imprisonment.

Miss Lily Ho, Senior Government Counsel, for the HKSAR.

The defendant in person.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.