Fung Tin-cheung v. The Queen

CACC001118/1982.

BETWEEN

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Coram: Hon. McMullin, V.-P., Li & Silke, JJ.A.

Date: 22nd March, 1983.

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JUDGMENT

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McMullin, V.-P.:

1. The Defendant applies for leave to appeal against a sentence of 5 years imposed upon him following his plea of guilty to a single charge of theft involving a sum of $1 million in Hong Kong currency. He was, at the time with which we are concerned, the commander of a crew employed by the Hong Kong Security Ltd. As part of the duties of his employment, on the 11th October, he and his crew took a large quantity of cash, collected from the Jockey Club premises after a race meeting held on the 10th October, to the Hong Kong & Shanghai Bank of America Tower. Thereafter they went to another bank when a cash cheque for $4 million was received and with this, and another box containing some cash, they went back to the Hong Kong & Shanghai Bank.

2. The cheque was taken by one of the defendant's colleagues into another room in the Bank and it was there exchanged for cash.

3. A strong box, or security box, had been taken into the Bank by the defendant and his colleagues according to the customary procedure in such lodgments of money. The defendant, when he was alone with another colleague, named Hui, after the counting of the $4 million, made a pretext which caused his colleague to withdraw. The $4 million had been supplied in separate blocks or "bricks" of $1 million each. He said to his colleague that the lock on the box which they had brought in to the Bank was defective and he told him to go and fetch another.

4. Hui withdrew to do so and was away for several minutes. During that time, the defendant broke one of the bricks and. extracted from it a million dollars in $1,000 notes which he concealed in the pockets of his uniform. He then put the remaining money into the security box and sealed it.

5. There is a divergence at this point between the facts which are now put by agreement before this court as being correct and what was said in the statement of facts to the Judge, but the difference is immaterial and does not affect what has to be said about the sentence

6. The defendant then made a further excuse and asked his colleague to take the two boxes, one of which contained in fact $3 million only instead of $4 million, to the security van, while he himself remained behind. The colleague left with the two boxes and the accused made off with the $1 million. The colleagues of the defendant waited for him for a while and then, when he did not appear, informed their superiors. Subsequently the police were brought in upon the affair.

7. Nothing happened for sometime after that but exactly a week later the defendant was observed getting into a taxi by a manager of the Hong Kong Security Co. who happened to encounter him near the Star Ferry Concourse. He got away in the taxi but the taxi was discovered later, the police having been informed, and the defendant was seen getting out of the taxi about a quarter of an hour later in Lee Garden Hill Road. He was at once arrested and taken to the police station where he made a full confession.

8. He had deposited various amounts of the stolen money in deposit boxes and in an account of his own in the Hang Seng Bank. When found he had a briefcase with him in which was the balance of the money.

9. $970,000 were recovered and we are informed, and it is accepted, that the remainder was spent partly upon paying debts which he owed to loan companies and partly upon, as he put it in his confessional statement, dancing, eating, drinking and gambling.

10. In passing sentence, the Judge rightly referred to the fact that this was an enormous sum and that the defendant, who was in a position of trust, had done the very thing which he had been employed to prevent.

11. We have taken into consideration the written plea which the defendant himself has put forward and which Mr. Sedgwick, who appears for him today, has asked us to refer to. The Crown does not dispute the burden of this plea which is, for our purposes, to the effect that, having committed this crime which was un-premeditated in the sense that, whether he had contemplated such a thing before or not, he seized upon a sudden opportunity when he was in the bank to do what he did. Further, no issue is taken to this plea where he says that he was in a condition of some desperation, having done what he had done, and in fact was afraid to go home or see his relatives and for several nights spent the night sleeping in stairways before he made the various deposits.

12. These are circumstances which support the idea that the crime was one of sudden impulse following upon a service of 8 years with the company which, so far as we are aware, was good service, faithful service, at no very high rate of remuneration which, at the time of his arrest, would appear to have been only $3,000 per month.

13. We cannot say that any of the observations by the District Judge were in error, nor can we say that the sentence was wrong in principle, but having regard to the circumstances as we now understand them, particularly in the light of a confessional statement made after arrest which has been read to us and which, as we understand it, was not before the court when passing sentence, we think that the sentence of 5 years is too heavy. We grant the application and treating it as the hearing of the appeal we set it aside and substitute therefor a sentence of 3 years only.

Representation:

A.W. Sedgwick (D.L.A.) assigned for Appellant.

C.G. Jackson, for Respondent/Crown.