THE QUEEN v. CHU TAI WAI AND ANOTHER

IN THE COURT OF APPEAL

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JUDGMENT

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Theft: Sentence: Review: Breach of trust by offender.

Silke, J. A.:

1. Chu Tai Wai - "R1" - and Wong Ding Noun - "R2'' - were both convicted upon their own pleas on a joint charge of theft before Judge Sanders in the District Court.

2. Chu Tai Wai was an employee of Guard Force Limited.  Wong Ding Noun was known to him and had himself been employed by Guard Force up to the 15th January 1986.

3. On the 17th January 1986, R1 telephoned R2 and asked for and obtained his assistance as a participant in a contemplated theft from Guard Force.

4. R1 was on duty with a Guard Force van with three other persons and during the course of the day they made several pick ups from client firms.  About 6.10 p.m., the van was driven to a metered parking space near the Whampoa Neighbourhood Police Centre.  The van was locked and the crew went for a meal.  R1 said that he was feeling ill and he was going to go off duty.  He then, with R2, went to the parked van, entered the vehicle through the rear hatch and removed two sealed containers.  These were the containers into which the items which had been collected had been put.

5. They both then went to the house of R2 in Tai Kok Tsui; divided some of the cash between them and took the remainder in a parcel to the house of an innocent friend of R2 for him to look after it.

6. The total sum involved was in cash about $116,000: there was also a quantity of cheques and bills of exchange: those items were destroyed. There is missing a sum of about $26,000. The rest of the money has been recovered.

7. Both the Respondents had clear records, a not unusual circumstance when they had been employed as security guards. The trial judge, having obtained and considered Probation Reports, placed both of the Respondents upon probation: R1 for two years and R2 for 18 months. Convictions were recorded.

8. The Crown now seeks to review those sentences on the basis that they are wrong in principle and manifestly inadequate. They rely in particular on the fact that R1 was in a position of trust and, while R2 was not an employee of Guard Force at the actual day of the theft, he had, been so employed up to two days before-hand. Further the amount taken was substantial and that there was premeditation, it was not a spur of the moment idea.

9. The Probation Reports in respect of both of the Respondents were favourable. The wife of R1 had died in 1982 and that was a circumstance from which he had not recovered. He had borrowed money for his wife's illness and funeral, had got himself further into debt and had started to drink heavily lie was the sole support of his elderly mother. He was aged 27.

10. R2 was aged 25 and was married with a four years old child. He had also fallen into debt, having borrowed to start a business of his own but that business was frustrated when his van, containing a large quantity of property belonging to others, was stolen. He had previously been an police officer. The reporting officer in both cases accepted the remorse was genuine and this, of course, was reinforced by the pleas of guilty.

11. Mr. Hartmann, who appears for the Crown in this Court, has drawn our attention to the aspects of the case both favourable and unfavourable to the Respondents and to certain authorities in this jurisdiction and in England.

12. Mr. Niamatullah, who appears for both Respondents in this Court, has urged upon us their personal circumstances, in particular, the tragic background of R1 and the fact that R2 was not an employee of Guard Force at the time of the offence. He accepts himself to be in difficulties, and quite rightly in relation to R1 where the norm in cases of this nature is a custodial sentence. As was said by another Division of the Court in R. v. Cheung Hung, ⁽¹⁾ of a jeweller who had misappropriated jewellery entrusted to him by others, these offences were serious offences involving serious dishonesty "by a man who was in a position of trust in the sense of those articles of jewellery had been entrusted to him - and that they were offences which merited "condign and serious pubishment".

13. In Ho Wai Wah v. The Queen, ⁽²⁾ another Division of this Court said that a breach of trust of an employee is not something which the Courts can encourage.

14. We accept that, on general principle, a breach of trust does attract to itself a custodial sentence. The amount involved in the offence is one factor another is whether or not there was premeditation.

15. The other side of the coin is, of course, that the personal circumstances of the offender are also matters for consideration and whether or not there is a plea.

16. It has been suggested by Mr. Niamatullah that here, after trial, a sentence of 18 months would have been appropriate for R1. We do not agree. Bearing in mind all of the circumstances, both of the offence and of the offender, we would have thought four years to have been appropriate. We find it difficult to make any real distinction as between R1 and R2. While R2 was not physically in a position of trust at the time, he was well conversant with the firm and had very recently been employed by it.

17. We accept that a proper and substantial discount could be given for the pleas of guilty and bearing in mind that which was made known to the trial judge of the personal circumstances of the Respondents. We would think that a sentence between two to 21/2 years would have been appropriate.

18. With respect to the trial judge in his careful consideration of the issue he did not give sufficient emphasis to the aspect of the breach of trust that was the major feature in this case.

19. We would, therefore, allow the application for Review in both cases; set aside the sentences imposed and, this being a review, give the discount which has become the norm and substitute for the order made a sentence of 18 months' imprisonment in each case.

(1)    Criminal Appeal No. 986 of 1982

(2)    Criminal Appeal No. 201 of 1982