The Queen v. Lo Kim Lung

[English Translation — 英譯本]
HCMA 1492/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1492 OF 1996

_________________

BETWEEN

_________________

Coram: Hon Mr Justice Yeung in Court

Date: 17 April 1996

Time: 11:16 a.m.

------------------------

JUDGMENT

------------------------

1. Lo Kim Lung, the appellant herein, was convicted after trial on six counts of accepting an advantage.  He was sentenced to imprisonment for 18 months in respect of each count, with the sentences to run concurrently, making a total term of 18 months.  The appellant appeals against the sentence, which he contends is wrong in principle and excessive.  The facts are that the appellant was employed by the victim company as a loan officer.  He participated in a scheme or arrangement whereby his friends applied to the victim company for loans, in the course of which his friends put down certain false information in the application forms, even though the identity card numbers and some other information provided by them were correct.  The facts also show that when the appellant checked the application forms submitted by his friends, he very well knew that some of the information in the forms was false.  After checking the forms, he recommended to his superior that the applications be approved.  Upon release of the loans to his friends, the appellant would be given part of the loan as reward.

2. The prospects of the victim company being able to recover the loans it has made do not appear hopeful.  On the facts, the six offences were committed within a period of less than two months, and the total amount of advantage thereby accepted by the appellant was $15,000.  The magistrate pointed out in the Reasons for Sentence that but for the fact that someone provided information about these offences, the fraudulent scheme against the victim company might well have continued.  Mr. Chung for the appellant has submitted that this comment is not necessarily correct and that the court may not be entitled to rely on it as a basis for sentencing.  In my view, however, the observation made by the magistrate in this respect is not unreasonable.

3. In any event, the question before me now is whether the sentence of 18 months’ imprisonment is excessive or contrary to principle.  One aspect which I cannot overlook is that the appellant acted in breach of the trust which the victim company reposed in him.  The courts have repeatedly pointed out that, in order to achieve deterrence, a rigorous sentencing approach should be taken in all cases involving a breach of trust.  On the facts of the present case, the appellant and his friends formulated a scheme the purpose of which was to deceive his employer.  Although the scheme was not very sophisticated and, it may be said, not too professional, the plain facts are that the appellant and his friends successfully deceived the company six times in less than two months and that the company suffered financial losses as a result.

4. Counsel for the appellant has also submitted that financial institutions in Hong Kong must be protected.  Anyone — in particular, an employee of a financial institution — who has deceived his employer by any means must be subjected to severe punishment.  People must be deterred from doing the disloyal acts which the appellant has done.

5. The appellant has two conviction records, both in respect of offences involving dishonesty.  In light of the fact that all six offences were committed within two months, I do not think that the starting point of two years adopted by the magistrate is excessive.  Nor in my view has the magistrate erred in principle.  Still less do I consider the final sentence of 18 months’ imprisonment excessive. The magistrate did not err in principle in passing the sentence of 18 months’ imprisonment.  Having considered all the circumstances of the case, including the number of offences and the appellant’s previous convictions, as well as his lack of remorse, I am of the view that the sentence of 18 months’ imprisonment is appropriate.  The appeal is dismissed accordingly.

Present: Mr. Bernard Chung (Yaddy Cheung & Co.), for the Appellant

Ms. Denise Chan (Senior Crown Counsel), for the Crown

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