Yip Yiu Shun v. The Queen
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CACC000715/1975 IN THE SUPREME COURT OF HONG KNOG (APPELLATE JURISDTCTION) CRIMINAL APPEAL NO. 715 OF 1975 -----------------
Coram: Huggins & McMullin, JJ. Date of Judgment: 3rd October 1975. ----------------- JUDGMENT ----------------- Huggins, J.: 1. This is an appeal against sentences totalling three years' imprisonment on thirteen charges of theft. The Appellant was employed by a diamond merchant as a salesman. He was entrusted with very large quantities of diamonds and, although he was earning what no doubt is a proper salary, it was but a modest one. He had from time to time no less than half a million dollars' worth of diamonds in his custody. Unfortunately he was induced by others to embark upon what was from the start a dishonest transaction. His job was to sell diamonds on behalf of his employers and to pay to them the proceeds - possibly less his commission. He decided with these others to start selling the diamonds in Japan (where, apparently, higher profits can be obtained than in Hong Kong), to pay to the employers the amount of the proceeds which would normally have been obtained in Hong Kong and to pocket the balance as a secret commission. That was dishonest. It was actionable. All would possibly have been well despite that, so far as the criminal law and the police were concerned, but for the fact that his co-conspirators then made off with diamonds which were consigned to Japan, leaving the Appellant to make good the loss as best he could. It appears that some $300,000 worth were missing in the first instance and for a time he managed to hold things back by borrowing from relatives and friends. However, that could not go on for ever. The relatives and friends pressed him for payment and he then started to take money from the firm. He initially stole a number of amounts in cash varying from just over $1,000 up to something in the region of $65,000. Finally he stole a cheque for $182,648.50 and, apparently realizing that he could never make good all that was due, he absconded to Taiwan. 2. At this stage there are certain mitigating factors which arose. After about a month and a half he began to appreciate that he would be on the run for the rest of his life if he remained away from Hong Kong and he communicated with his employers. His employers, who it may be observed have stood by him in a most remarkable way throughout from that time on, went to Taiwan and interviewed him. He thereupon handed to them all the diamonds which he still had in his possession and a large sum of money. Subsequently he handed over more money, until he has repaid $125,000. His employers quite frankly explained the legal position to him, pointed out that there was little they could do to force him to make payment and nothing they could do to force his return to Hong Kong but he agreed to come back of his own volition. We do not spend time considering just what the pressures on him were - whether there were visa difficulties with the Taiwan authorities which would have made him unable to stay in Taiwan: we should assume that he came back to Hong Kong entirely of his own volition and without any other pressures than his own conscience. 3. He was, of course, arrested immediately on his return, and Mr. Yu submits that terms amounting in all to three years' imprisonment were unduly heavy in all the circumstances. He concedes, as indeed he must concede and as was said by this Court in Attorney General v. CHEUNG Chi-sun App. for Rev. No. 13 of 1975, that any crime involving dishonesty by employees must be regarded as a serious matter by the courts because the whole of the economy of Hong Kong depends upon honesty in commercial dealings. That being said, however, it is submitted here that there are very strong mitigating factors and that the sentence of three years is manifestly excessive. 4. We have given all the matters which Mr. Yu has referred us to with great care and we are satisfied that we must intervene in this case. The question is To what extent? We have come finally to the conclusion that we cannot agree to any sentence less than one of eighteen months' imprisonment. We think that is, however, a proper sentence and the appeal will be allowed to the extent that the totality of the sentences is reduced to eighteen months. The mechanics of it are really unimportant. What I am proposing is that all the sentences in excess of eighteen months should be reduced to eighteen months. Those of one year would remain at one year. 5. My brother agrees that that is the way it should be done. 3rd October 1975. Representation: |