SPEEDY GODOWN CO. LTD. and Another v. LUNG WAI HUNG

1998, No. HCA6529

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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1. This is an application for the continuation of an injunction which was granted by Stone J. on 25 April 1998.

2. It is a very unusual case, the basic facts are these. This lady, Lung Wai Hung, was employed by the plaintiffs in the action. She was a clerk in charge of a warehouse and by a clever dishonest scheme she managed to steal nearly $10 million worth of cloth from the plaintiffs' godown, where it all went to no one quite knows, but about half of the cloth has been recovered by the police. She was charged with theft.

3. What happened was that instead of charging her with all of the cloth as she should have been, there was some specimen charges made against her. She came before Deputy Judge Fung in the District Court and she pleaded guilty. On Friday, 24 April, the Deputy Judge sentenced her to 14 months imprisonment - he started with a sentence of two years and reduced it to 14 months. That would appear to be low but that is neither here nor there.

4. There had been found about $1.5 million or so in some bank accounts which was the proceeds of the cloth she had been stealing from her employers. The employers turned up at Court and wanted the Judge to make an order giving them the money. The prosecutor, for reasons unknown to me, wanted the money to go to the Government. The Judge did not know what to do, and so he adjourned the matter over the weekend so he could think about it.

5. On the Saturday morning, the employers went to the High Court to Stone J. saying that they had sued this lady for all the money she had stolen from them, and they wanted the Judge to freeze all her assets and grant what is called a Mareva injunction which the Judge did. She clearly had stolen the money and there was money available to satisfy the employers. So on the Monday, back to the Court went the employers with this order of the High Court Judge, which indicated that she now had no assets. Deputy District Judge ignored that and said that he would make an order and give the money to the Government.

6. It is an important principle of criminal law that those who suffer ought to be compensated. People seem to forget that the victims of crime are the ones that really suffer. Sometimes they suffer from physical matters, sometimes financial. Here were the employers, who had lost $5 million worth of their material, finding that the money that belonged to them was being given to the Government. Not unnaturally, they are rather upset about this.

7. The matter then came back to me. In my judgment, I am not permitted to discharge the injunction. It is validly granted. It is for an amount of money which clearly is owing to the plaintiffs. The money in the bank account belongs to the employers and they ought to get it. I see no reason why the Government should get this money. Unfortunately for this lady, this Judge has told her now that unless she pays the money by June, she is going to get another 26 months imprisonment. She has received 14 months and she will have to do another 26 months which seems completely unjust and unfair.

8. There is a confiscation order which I have seen which is wrongly dated. It is said to be by consent, that is wrong. There were no realizable assets when the Judge made the order. The provisions of s.11 of the Ordinance could not be satisfied because all the monies had been frozen by a High Court order. I, therefore, direct that this matter be brought to the attention of the Department of Justice. They had written a letter to the solicitors saying they want the injunction varied, they certainly would not have it. The defendant here must appeal now the sentence and the confiscation order that has been unlawfully made, otherwise, she is going to serve another 26 months imprisonment.

9. I direct that my judgment be given to the Legal Aid Department so that legal aid should be granted to her. I have also personally spoken to the Vice-President in charge of Criminal Listing in the building and I will write to ensure that the appeal will be heard within the next couple of weeks, otherwise, she would have to go to prison and that would be quite wrong. I also asked that a copy of the judgment be given to the Deputy Judge and a copy to the Department of Justice.

(R.A.W. Sears)

Judge of the Court of First Instance,
High Court