HKSAR v. Lee Lai Kit Kitty

CACC379/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 379 OF 2008

(On Appeal From District Court Criminal Case No. 396 of 2008)

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BETWEEN

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Before : Hon Tang VP, Cheung and Yuen JJA in Court

Date of Hearing : 22 September 2009

Date of Judgment : 22 September 2009

Date of Reasons for Judgment : 7 October 2009

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving reasons for judgment of the Court) :

1.The applicant was convicted after trial by H H Judge D’Almada Remedios of the offence of theft, contrary to section 9 of the Theft Ordinance (Cap. 210) and was sentenced to three and a half years’ imprisonment. The applicant applied for leave to appeal against conviction and sentence. She appeared in person in her application on conviction while Mr. James Tze appeared as counsel for her on the application on sentence.

2.At the conclusion of the hearing we dismissed the application for leave to appeal against conviction but allowed the application on sentence, treated the application as the appeal proper, allowed the appeal and substituted the original sentence with a sentence of three years and two months. We now give our reasons.

Prosecution’s case

3.The applicant was employed as an accounting clerk by a company called Eastern International Silk Company Limited (‘Eastern’). The proprietor of Eastern was PW1.

4.On 28 June 2007 the applicant transferred US$256,819.29 from the bank account of Eastern at the Industrial Commercial Bank of China Asia Limited (‘ICBC’) to the account of one Michael Chan at the Nanyang Commercial Bank. The transfer was made without the consent or authority of Eastern and PW1.

5.In July 2007 PW1 received a telephone call from a person who identified himself as Michael Chan. He informed PW1 that the applicant has stolen about US$250,000.00 from Eastern. He promised to return the money to Eastern. He further said that the remaining HK$150,000.00 was with the applicant. Upon being informed of this, PW1 checked Eastern’s accounts and discovered that the money was indeed removed from the ICBC account.

6.On 31 July 2007 Eastern received a cheque of HK$1,850,620.00 from Michael Chan. After the receipt of money, PW2, who was the manager of Eastern, telephoned the applicant and informed her that he knew of the unauthorised transfer of money from Eastern to Michael Chan. The applicant told PW2 that Michael Chan had persuaded her to make the transfer. She promised PW2 that she would return the rest of HK$152,570.00 by a lump sum payment of HK$52,570.00 and the rest by monthly instalments of HK$5,000.00 each. Although the applicant had after this conversation deposited a cheque of HK$52,570.00 into Eastern’s bank account, the cheque was dishonoured. Thereafter no payment was ever made by the applicant to Eastern.

7.When the applicant was interviewed by the police she admitted that she had no authority to withdraw or transfer the money to Michael Chan. She told the police that Michael Chan had instructed her to withdraw the money and she transferred the money to Michael Chan in order to help him. She admitted that she used a blank form signed by PW1 to effect the transfer.

The defence

8.The applicant elected to give evidence in court.

9.The defence case was that the applicant had indeed transferred the money from Eastern to Michael Chan but it was done at the direction of PW1. PW1 had asked her if she knew someone who had an account which he could use in order to enable money being transferred from Eastern to that person’s account. After the transfer that person could keep 10% of the money transferred but had to return the other 90% to Eastern.

10.The applicant found Michael Chan who was prepared to allow his account being used in such a way and she informed PW1 accordingly. PW1 agreed to transfer the money to Michael Chan. He further told the applicant to keep the money returned by Michael Chan until he came back to Hong Kong. Michael Chan issued a cash cheque in the sum of about 90% of the original transferred sum but the cheque was dishonoured. The applicant immediately told PW1 about this who became very annoyed and told her that he wanted the whole of the transferred sum to be returned. She made attempts to contact Michael Chan but to no avail. Eventually PW2 informed her that Michael Chan had returned the money but a balance of about HK$150,000.00 was missing. PW2 demanded her to return this sum. She agreed to pay HK$57,000.00 because she felt she was partly responsible for introducing a dishonest man to PW1, but when she realized later that the returned money had nothing to do with her she refused to pay the sum over to Eastern.

The finding

11.The Judge found that the police interview was voluntarily given by the applicant. The Judge rejected the applicant’s case that it was PW1 who asked her to find someone to have the money transferred into that person’s account. She found it highly improbable that PW1, a businessman of 17 years’ experience, would ask the applicant, his employee of only two years, to find someone’s account to remit the money. She described the applicant’s case that she recommended Michael Chan to be absurd. The applicant had not seen or contacted Michael Chan for about 10 years. During this time Michael Chan still owed her about HK$30,000.00 despite his promise to repay her 10 years ago. The Judge found PW1 to be an honest and reliable witness. The judge further rejected the applicant’s case that PW1 in fact had given her invoices for the purpose of making the transfer appear genuine.

Conviction

12.In respect of her application for leave to appeal against conviction, the applicant had not really advanced any substantial grounds which would challenge the correctness of the finding. She claimed that PW1 only pre-signed some TT forms and not the CHATS forms which was used in the transfer of the money. She claimed that she agreed to repay HK$52,570.00 not out of her own accord but only did so because Michael Chan did not repay the full amount and she was harassed by PW1 and PW2 to repay the money. She claimed that the police interview was made at the time when she was confused and the police had told her that it was useless to hire a lawyer and that she had to answer the questions. She gave the interview involuntarily. She explained that she told the police the transfer was without authorization in the sense that she did not receive any signed authority from PW1 and on the day of the transfer she did not inform PW1. She misunderstood the meaning of authorization. She insisted that the transfer was carried out with the authorization of PW1. She further claimed that Michael Chan and PW1 were acquainted for a period of half a year.

13.In our view the Judge had fully considered the nature of the prosecution and defence case.

14.As an example of the untruthfulness of the defence, the Judge had said :

‘87.  The defendant explained in her viva voce evidence that she told the police officers she did not have authority because PW1 had told her not to tell other people about the transfer of funds of the company and warned her that if she did, she would be in trouble.  She therefore hid the truth when she was being interviewed.  This is most implausible and is in direct contrast to what is in the interview.’

15.This is to be further contrasted with what the applicant said in this appeal about what she said at the police interview that the transfer was without authorization.

16.The Judge was clearly justified in accepting the evidence of PW1 and PW2. This was a finding of fact with which we would not interfere.

Allegation against legal advisers

17.In this appeal the applicant made allegations against her legal representatives. Counsel and the solicitor in charge of the case had both served affidavits in response to the allegations. The only matter of substance in the applicant’s complaint is that counsel had not called two important witnesses namely, Mary Ha, a former employee of Eastern and Michael Chan himself. It was said that Mary Ha knew PW1 only signed TT forms and not CHATS forms and Mary Ha could also give evidence that Michael Chan and PW1 were acquainted. According to counsel, this issue, in fact, had been discussed with the applicant at the hearing. At that stage the applicant could not even locate these two witnesses. Counsel had requested the prosecution to tender Michael Chan for cross-examination but the request was not agreed upon by the prosecution. Clearly the prosecution had the right to decide whom they would call to give evidence. Michael Chan was not on the prosecution’s list of witnesses. He had made damaging allegations against the applicant in his statements to the police. It was agreed by the applicant eventually that these two witnesses should not be called. Counsel’s response was confirmed by the solicitor in charge of the case.

18.There were allegations that counsel was not familiar with the case and that he had to go to the library to look up matters and that the Judge could not properly understand his English. Counsel had responded to these allegations in his affidavit.

19.We are satisfied that counsel had discharged his professional duties competently. In our view the Judge’s decision to convict was patently correct.

Sentence

20.In relation to the appeal against sentence, in HKSAR v. Cheung Mee Kiu CACC 99/2006 this court (Ma CJHC and Burrell J) gave guidelines on the appropriate range of sentence for theft which is based on the amount involved :

(1)  over $15 million ― 10 years more;

(2)  $3 million to $15 million ― 5 to 9 years;

(3)  $1 million to $3 million ― 3 to 4 years;

(4)  $250,000 to $1 million ― 2 to 3 years;

(5)  less than $250,000 ― less than 2 years.

21.In HKSAR v. Ng Kwok Wing CACC 398/2007 this Court (Cheung and Yeung JJA) adjusted the second and third bands of Cheung Mee Kiu as follows :

(2)  $3 million to $15 million ― 5 to 10 years;

(3)  $1 million to $3 million ― 3 to 5 years.

22.The upward adjustment was not due to any substantial development subsequent to Cheung Mee Kiu which merited an increase in sentence but rather to give full effect to the five bands of sentences so as to ensure that there is no perceived gap between the sentences for $1-3 million, $3-5 million and over $15 million.

23.In terms of the amount of money involved in the present case, Mr. Tze accepted that the figure of three and a half years adopted by the Judge was correct but he argued that the matter should not be judged solely by the amount of money involved but rather, as stated in R v. Barrick (1995) 81 Cr. App. R. 78, the Court should also take into account the following matters :

‘ (i)  the quality and degree of trust reposed in the offender including his rank;

(ii)  the period over which the fraud or the thefts have been perpetrated;

(iii)  the use to which the money or property dishonestly taken was put;

(iv)  the effect upon the victim;

(v)  the impact of the offences on the public and public confidence;

(vi)  the effect upon fellow-employees or partners;

(vii)  the effect on the offender himself;

(viii)  his own history;

(ix)  those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.’

24.Mr. Tze submitted that in view of the repayment by Michael Chan the actual loss to Eastern was only about HK$150,000.00 and in contrast to some other cases the present theft only involved one victim and one transaction.

25.The Judge was, of course, right when she said that the repayment to Eastern was not made by the applicant by way of restitution but was repayment by Michael Chan. However, the impact of the offence on the victim was a relevant consideration as was the fact that the present offence only involved one single transaction. We are of the view that these two factors should be given their proper weight. Accordingly we reduced the sentence from three years and six months to three years and two months which is about a 10% reduction from the original sentence.

Ms Winsome Chan, SPP of Department of Justice, for the Respondent

Mr. James Tze, instructed by Messrs Gary Lau & Partners, for the Applicant (Re: Sentence)

Applicant, in person, present (Re: Conviction)