CHEUNG CHIU HUNG v. THE QUEEN

IN THE COURT OF APPEAL

Criminal Appeal
No. 359 of 1987

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JUDGMENT

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1. The Appellant seeks leave to appeal against the sentence of 18 months imprisonment imposed upon him for the theft of 84 batches, each of 400 Hong Kong & Shanghai Bank shares, from his employer, the Tung Shing Securities Co. Ltd. The shares were found to be missing on the 16th February 1987 and on the 20th March, an unknown person delivered 44 of those batches for transfer of ownership.

2. We are informed by Mr. Tsang who appears for the Applicant, that on the 24th April the latter admitted to his employer that he had taken the shares and that two other persons were involved. On the 30th April the police arrested the Applicant. He made a clean breast of the matter and co-operated fully. He has since repaid $209,460.00. The balance of the employer's loss has been repaid by two other Defendants with whom he was involved. The employer supports a lenient sentence. The Applicant pleaded guilty at his trial and a very favourable probation report was received.

3. Mr. Albert Tsang in an eloquent plea on behalf of the Applicant, has also drawn our attention to a number of other features of this case which militate strongly in favour of the Applicant. He is only 22, and was 21 years of age at the time of the offence. It was one single act when he took all the shares, succumbing to temptation. It was a foolish act, detection being inevitable. He not only made a full confession very early on, but pleaded guilty at the first opportunity. There is also strong family support.

4. However, the Applicant's record is not entirely untarnished. He has a previous conviction for theft. But this, it turns out, was for keeping a student travel card he found. He was fined $200. We do not regard that offence as particularly material in the circumstances. In addition, as the trial judge observed, the Applicant's act was in the nature of a breach of trust. Again, in this regard, although the Applicant was in a sense entrusted with these shares, he was not actually employed in a position of trust. His duties were in the nature of those of a messenger and he received only $1,900 per month as salary. Manifestly, a very low degree of trust was involved.

5. Looking at the matter from the position in which this court finds itself, it would seem, in the additional light shed upon the matter by Mr. Tsang, that the two months imprisonment that the Applicant has already undergone has served to bring home to him the seriousness of his offence. This court is in a position to substitute a suspended sentence and at the same time to reinforce the period of suspension with supervision by the Director of Social Welfare. He are disposed to do that as an act of mercy, which should not be regarded as a precedent.

6. Accordingly we grant leave to appeal, allow the appeal, and substitute a sentence of 18 months imprisonment suspended for a period of two years during which the Applicant will be subject to the supervision of the Director of Social Welfare.