THE QUEEN v. WONG HUNG BIU

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J U D G M E N T

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Penlington, J.A. delivered the judgment of the Courts:

1. This is an application for leave to appeal against sentences passed in respect of 7 charges to which the applicant pleaded guilty before His Honour Judge Cameron in th Deistrict Court the facts having been agreed. However there were certain other facts which emerged in this Court which were no before the District Judge.

2. The charges related to the applicant's activities when he was occupying a senior position as a small partner in a firm known as Astaire & Co. (Far East) Ltd., sharebrokers.

3. The first two charge related to he 12th March 1982. In order to cover his losses on the London Stock Market, where he had taken up either a short or long position on shares, he took shares from the firm's. safe which were in safe custody and in the firm's name as nominees and sold them in order to cover those losses. Those two charges related to a total amount of some $2½ million.

4. Charge 3 related to a similar event in December 1982, involving $90,500 worth of shares and Charge 7 in July 1984 when again he used clients' shares worth $680,000 in order to cover his stock market losses.

5. We are told now that Charges 4 to 6, in March 1983, related to the unauthorised sale of shares not to cover his stock market losses but to replace deposits of the firm's money which the applicant had placed with a deposit-taking firm which had defaulted. These charges relate to a total of about $1,650,000.

6. The total amount involved in the seven charges in just short of $5 million. These were not specimen charges and that was the total amount of the depredations.

7. When he realised that the discovery was imminent, the applicant fled to Taiwan where he remained for a period but eventually returned to Hong Kong in 1985. While he was in Taiwan he had made a telephone call to the firm telling them what he had done giving them certain information. Somebody front the firm went and saw him in Taiwan and obtained further information. He was fully co-operative.

8. For reasons which are not known no report was made to the police about these matters until May 1988. After his return to long Kong he got employment first of all as a taxi-driver then later got himself back into the financial world, holding a reasonably responsible position.

9. The trial judge took into account in coming to sentences of 5 years in respect of each charge to be served concurrently, the guidelines which are set out clearly and helpfully by the Lord Chief Justice in the leading English case of Barrick (1985) 81 Crim. App. Rep. 78. While these are useful guidelines, and have been so accepted by this Court they arc by no means exclusive, and there may be other factors which can be relevant to a particular defendant

10. This type of case is always sad and often the same type of mitigation is present. Here is a person who has achieved a senior position of trust and has an unblemished record because he could not otherwise have achieved that position of trust. He has thrown away a very good position and excellent propects. His family has and will suffer, quite apart from the defendant serving a term of imprisonment. But nevertheless it has been laid down in Barrick that a custodial sentence for persons who are in a position of trust and used that position to obtain large suns of money is almost inevitable.

11. Those factors had been' reiterated before us by Mr. Eddis who appears for the applicant. He submitted chat the learned judge did not pay sufficient attention to some of them and that, taking all hose factors into account these is a great weal here as mitigation. He stresses that the applicant has not benefited from the thefts except to the extent that he has used the money to cover up a situation of losses already incurred and submits that this is not a case of a person taking money in order to support a very high standard of living. Nor, he urges was it the position, as it has been so often in other cases, where gambling has been the cause of the problem and money has been taken and then used to gamble. Though clearly the applicant was indulging in the earlier offences in a form of gambling.

12. One of the factors which we feel is always relevant to sentences for offences such as this is that of restitution. Here there has been no restitution nor any attempt at it, of any of the funds, which were taken. We have been referred to Davies (1986) 8 Cr.App.R.(S.) 318 where restitution of a substantial amount had been made by the applicant's mother. It was held that such restitution, because it was not coming from the applicant himself, was not a factor to be taken into consideration,

13. We feel that if restitution, comer from the applicant: himself it is a stronger matigating factor than if restitution if restitution is promised or made by others, nevertheless such restitution a factor which should be taken into consideration, it was so considered in Miller (1985) Cr. App. R.(S.) 318, a decision not referred to in Davies. Of course here the amount involved is so great that no doubt no restitution in terms of a substantial percentage would be possible. Nevertheless the applicant has been back in Hong Kong for some four years, and nothing has been paid.

14. It is also true that the applicant has of used the money obtained to support a high style of living and has now nothing to show for his actions. He also did of use the money to then go out and gamble with it, but the difference between doing so and using is to cover existing losses on stock speculations is very slight. The fact remains that some $5 million has gone and we do, not consider that the losses to the firm were covered by insurance to be a mitigating factor.

15. The trial judge took as a starting point, if these charges had been contested, of 7 years' imprisonment and gave a discount of 2 years for the pleas of guilty and the other mitigation. We feel with respect that 7 years on the facts of this case was too high, and we would have though ourselves that a sentence of years after a trial would have been right. He was also clearly entitled to a discount for the pleas of guilt, albeit in the face of clear evidence. We consider that some discount should also be given for the fact that the applicant did come back from Taiwan and that as no information had been given to the police regarding this matter, he was not forthwith arrested and continued to live in Hong Kong for a period of some 4 years. He has made efforts to rehabilitate himself which have been successful.

16. Taking into account all those factors, we consider that we should allow this application to the extent that the sentence of 5 years on each charge to be concurrent should be reduced to one of 4 years on each charge, also to be concurrent, and so order.