THE QUEEN v. KWOK LAI-LING

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J U D G M E N T

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Macdougall, J.:

1. This is the judgment of the court.

2. The applicant, a young woman aged 21, pleaded guilty in the District Court to 20, charges of false accounting and was sentenced by his Hon. Judge Corcoran to an overall sentence of 12 months imprisonment.

3. The facts of the case acre that the applicant was employed as an accounts clerk in a company concerned in the manufacture of and trade in electronic parts, and in that capacity was responsible for the calculation of the wages of workers employed on a daily basis. These wages would be paid either direct to workers in cash or by cheque into their bank accounts.

4. In respect of six of the charges, the applicant had overstated in the wages list the wages of workers who were paid in cash. She then paid the workers their correct wages and pocketed the balance. In respect of ten other charges, the applicant included in the cash wages list not only the names of those workers who were to receive their wages in cash but also the names of others who were to be paid by cheque. She then misappropriated the amounts wrongly stated to be paid to those others in cash. As to the remaining four charges, the applicant falsified bank pay-in slips issued to her company by making entries purporting to authorise the bank to credit the account of her sister with various sums totalling $8,738. The sister, who was not employed on the staff of the company, then withdrew the money at the request of the applicant and handed it to her.

5. The applicant accepted that the 20 charges brought against her were simply sample charges and that the total amount she had misappropriated was $165,647. The whole series of offences was committed over a period of 28 months from February 1985 to June 1987 when she was then in her nineteenth and twentieth years.

6. Having heard general mitigation from Mr. Hampton the trial judge adjourned the matter and called for probation and training centre suit ability reports. The Probation Officer's report was not favourable and probation was not recommended. In the training centre suitability report, the Intake Officer stated that although the applicant was in need of strict discipline and super vision, she was ineligible for detention in a training centre on account of her age.

7. In his Reasons for Sentence, the judge observed that the applicant had not simply surrendered to a momentary temptation but had engaged in a deliberate scheme to defraud her employer and had carried it out over a long period of time. In the circumstances, the judge took the view that it would not be correct in principle to deal with the applicant by making a probation order or by imposing a suspended sentence of imprisonment. He concluded that in the absence of mitigating factors an  immediate custodial sentence of 2½ years was appropriate. However, in view of her youth, her pleas of guilty, her clear record, her remorse and the fact that she had committed the offences at the instigation of her boy friend, the judge imposed a substantially lesser sentence of 12 months imprisonment. It is against that sentence that the applicant now seeks leave to appeal.

8. Mr. Hampton submitted to us on behalf of the applicant that the sentence was wrong in principle in that the judge failed to attach sufficient weight to all the mitigating factors including the fact that the applicant had expressed willingness to make restitution.

9. It is clear from the record that in his general mitigation prior to the calling for reports, Mr. Hampton told the judge that, with the assistance of friends and relatives, the applicant had been able to raise the total amount she had misappropriated, and that it had been deposited with her solicitors with the intention that it be repaid to her employer. However, he has now informed us that before the adjourned date for sentencing the applicant's relatives had given instructions that the money be returned to them. The fact remains that, although Mr. Hampton again addressed him in mitigation on sentencing day, the judge was not informed of this.

10. For the purposes of this application, the applicant has filed an affirmation in which she deposed that a month after sentence had been passed, her solicitor, in accordance with her instructions, wrote to her employer and stated that she intended to make restitution by making an initial payment of $50,000: followed by monthly instalments of $3,000 until the full amount outstanding. had been met. Two months later, her solicitors paid $50,000 to her employer's solicitors who replied on the following day confirming, that they had received that inital payment and that it was their understanding that the applicant would pay the balance by monthly instalments of $3,000 after her discharge from prison.

11. Whatever the earlier arrangements might have been, it is plain that on sentencing day, the total amount that had been misappropriated was not in the hands of the applicant's solicitors in readiness for restitution to her employee. Indeed none of it was. However, had it in fact been available, we do not consider that the judge was under any, obligation to take that into consideration for the purposes of sentencing. The significant fact was, that restitution had not been made. A mere promise to make restitution may be broken as easily as it is made. However, actual restitution made voluntarily before criminal proceedings have commenced, or while they are in their earliest stages, may have some relevance to sentencing as evidence of remorse. On the other hand, where it appears to have been made merely in the hope of obtaining a reduction in sentence, it can no longer be seen in that light. The courts do not make bargains with the convicted which have the effect of allowing them to buy themselves out of the penalty for their crimes.

12. Mr. Hampton made an alternative submission that because the applicant is now 6 months pregnant - a factor unknown to the judge and has not only now made partial restitution but has undertaken to make full restitution by way of monthly instalments after her discharge, it would be open to this court to suspend the remaining portion of her sentence as an act of mercy.

13. We do not agree. In our view, the circumstances of the offences committed by the applicant were such that the overall sentence imposed by the judge may fairly be described as merciful. While we accept that the applicant has now made partial restitution of the total amount she misappropriated, we do not consider that we would be justified on that basis in interfering with the sentence imposed. Likewise, we do not think that the fact of her pregancy should cause us to interfere. The application for leave to appeal is therefore refused.