HKSAR v. Lam Wah Mun

CACC000701/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.700
(Criminal)

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1997, No.701
(Criminal)

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Coram: Power, V.-P., Mayo & Stuart-Moore, JJ.A.

Date of Hearing: 11 March 1998

Date of Judgment: 11 March 1998

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 28th October 1997, the Applicant pleaded guilty in the District Court to 15 charges of theft on one charge sheet (DCC 916/97) and he asked for five more offences of theft to be taken into consideration. On a second charge sheet (DCC 917/97) there were two further offences of theft and one for obtaining by deception, to which he also pleaded guilty. Deputy Judge Barnes imposed a total sentence of 4 years' imprisonment against which the Applicant now seeks leave to appeal.

2. The 15 theft offences in DCC 916/97 were committed between 22nd September 1994 and 27th February 1995. The offences in the other case were committed in January and February 1995. The two cases were, very sensibly and properly, dealt with at the same time.

3. The Deputy Judge accurately summarized the facts of the case in her Reasons for Sentence. She said:

"At the time of the commission of these offences, the Defendant was a salesman of Honest Motors and his ex-girl friend Yu Bik-wah was a sales executive of Euro Motors Ltd. Ms. Yu from time to time referred her customers, i.e. car purchasers, to the Defendant for the purpose of arranging for hire purchase loans and car insurance. On those occasions, the Defendant would contact Tang On-chuen for hire purchase loans and Tsang Ka-leung for car insurance. Once the hire-purchase loan was approved, Mr. Tang would forward two cheques to the Defendant, one for the balance of the purchase price in favour of Euro Motors and the other for purchase of car insurance on behalf of the customer car purchaser. Customers of Honest Motors at times also requested the Defendant to handle the car insurance for them.

Of the 15 counts of theft in DCC 916/97, all of them involved the Defendant pocketing the money for insurance. He either kept the cheques forwarded by Mr. Tang for that purpose, or he simply pocketed the cash given to him directly by car purchaser of Honest Motors. On 3 of the 15 occasions when he committed the theft of the money for insurance, he has also pocketed the proceeds which was a part-refund of cars traded in by the customers to Euro Motor Ltd.

The 5 incidents to be taken into consideration involved theft of the money for insurance from customers of Euro Motor Ltd. by the same method.

In respect of DCC 917/97, in February 1995, he falsely represented to Wong Tak-leung, a customer of Honest Motors, that there was a buyer who was willing to pay HK$240,000 for Wong's car. Upon such representation which was false, Wong allowed the Defendant to drive his car away (1st charge). In the same month, the Defendant sold a car traded-in by Lau Chung-ming, another customer of Honest Motors, without the approval of Honest Motors to Chun Yu Motor Company Limited (2nd Charge). In December 1994, the defendant pocketed the insurance premium from another customer of Honest Motors (3rd Charge).

All these offences span from September 1994 to February 1995, with most of them committed between November 1994 and February 1995"

4. Clearly some of the offences involved a serious breach of trust in relation to the Applicant's employment at Honest Motors. Other offences where Euro Motors are concerned were more in the nature of an exploitation of a friendship with an ex-girl friend.

5. In mitigation, the reason for the offences was put forward as being a means of support for the Applicant's gambling habit.

6. In the Applicant's favour, the trial judge took into account in relation to the thefts of insurance monies that because of the accounting procedures relating to insurance, vehicles were never actually left without cover. The judge was also prepared to treat the Applicant as a man who was of previous good character.

7. Mr. Fenton, who appears for the applicant, and who represented him in the Court below where he furnished to the trial judge a number of previous decisions of this Court in cases which were not dissimilar, has submitted that those authorities go some way towards illustrating that the sentence imposed was too long. We have considered his submission with care. We must emphasize, as Mr. Fenton has realistically accepted, that each case needs to be examined on an individual basis.

8. The trial judge dealt with the sentence in this case using meticulous care. She came to the conclusion that these offences were not simply one continuous criminal activity, and she divided the offences into a number of categories:

(1) offences involving theft from customers of Euro Motor Ltd.;

(2) offences involving theft from Honest Motors;

(3) offences involving theft from customers of Honest Motors; and

(4) deception exercised on the customer of Honest Motors.

9. Under category (1), there were 13 charges in DCC 916/97 involving $295,000 odd and five offences to be taken into consideration involving $70,000 odd, making a total of about $365,000. Under category (2), there was one theft of a car valued $183,000 (2nd charge in DCC 917/97). In category (3), there were three charges involving $30,740 (14th and 15th charges in DCC 916/97 and 3rd charge in DCC 917/97). Category (4) involved a motor car with a value to the victim of $240,000 which the Defendant sold for $174,000 odd (1st charge in DCC 917/97).

10. The judge then went on to discount the sentences on account of the guilty pleas and explained in her Reasons for Sentence her distinction between categories (3) and (4) by saying that although the losers were both customers of Honest Motors, she could not equate stealing insurance moneys with obtaining a car by deception. She then took for category (1) a starting point of four years' imprisonment, category (2) 18 months, category (3) two years and category (4) 18 months' imprisonment. Having discounted the sentence by one-third, she passed sentences of 30 months on category (1), having made a further allowance for good character so that the discount is in effect slightly more than one-third. Twelve months' imprisonment was imposed on categories (2) and (4) with three months of the sentence for the category (4) offence to run consecutively. Fifteen months' imprisonment was imposed on the category (3) offences to run consecutively, which brings the total to four years' imprisonment.

11. Despite all that Mr. Fenton has most eloquently urged upon us, we do not feel that there is any justification to disturb any of those sentences, either individually or in their totality. The trial judge had taken into account all of the relevant features of this case. It was a severe sentence but in no way was it wrong in principle.

12. Accordingly this application is dismissed.

Representation:

Mr. D..G. Saw, S.C., S.A.D.P.P. and Mr. Prakash L. Daryanani, G.C. for the Respondent.

Mr. J.G. Fenton assigned by D.L.A. for the Applicant.