THE QUEEN v. CHAN WING CHAN

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JUDGMENT

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Kempster, JA (giving the judgment of the Court):

1. On 13 October 1989 in the District Court Chan Wing-chan was found guilty of theft on his own plea. HH Judge Cameron sentenced him to five years imprisonment. Now Chan seeks leave to appeal against that sentence.

2. The circumstances of the offence were as follows. On 29 August 1989 the applicant was employed by a security company as the "senior commander" of an armoured van used to collect cash and cheques from certain shops and supermarkets in the Mongkok area. He had a crew of three men on board. He and his crew wore uniform. By 8 o'clock in the evening cash to the value of $480,311.70 and cheques to the value of $8,674.86 had been put into an iron box which in turn had been placed in the vehicle's safe. The safe was locked. Only the applicant of those on board the van had a key to it.

3. The van was parked outside the Palace Theatre in East Point and the applicant, who remained in the vehicle, instructed his crew to take their evening meal. They left. When they returned, some forty minutes later, the van was locked and there was no sign of the applicant. A supervisor also employed by the security firm was sent for and, when he unlocked first the van and then the safe with keys which he had brought with him, the money and cheques were found to be missing while a uniform, we think beyond a peradventure that of the applicant, had replaced them in the safe.

4. On 14 September following the applicant surrendered himself at Wanchai Police Station and made statements under caution admitting the theft of the money and cheques.

5. As was to be expected the applicant, 45 years of age and married, was a man of hitherto good character which, together with his plea and confession, was mentioned by the judge in his Reasons for Sentence. By his Perfected Grounds of Appeal the applicant contends, none the less, that such factors were not given sufficient weight. He admits a breach of trust, having been in the same employment for 15 years, but contends that the offence was committed on impulse and without premeditation. Apart from the fact that he had taken his civilian clothes on to the van that day we are in no position to come to any firm conclusion in this regard but, pressed as he apparently was for money, the applicant might have been planning his crime or, alternatively, resisting temptation for some time.

6. The applicant also complains of a failure by the judge to seek a probation report. When this application came before a division of this court differently constituted on 2 February a direction was made to fill this lacuna and the hearing adjourned. Now a report is to hand. That complaint falls away.

7. Miss Cheng, who appeared for the applicant at trial, stated that the applicant was a gambler who was being pressed for money by loan sharks and, into the bargain, was seeking to comply with requests to acquire property made by the father of a girl with whom he was infatuated. Miss Cheng said that the proceeds of crime had been appropriated as to $42,000 to loan sharks, $30,000 to expenditure in nightclubs, $12,800 to the purchase of a portable telephone, $360,000 to the young woman's father and the balance to gambling - and lost. None of this redounded to the applicant's credit and what was said to the trial judge on instructions is now borne out by the terms of the probation report.

8. The burden of the submission made to us on the applicant's behalf today, by Miss van der Eb, is that English and Hong Kong authority suggests that Judge Cameron fixed his sights too high when considering, as presumably he did, what would have been the appropriate sentence had guilt been contested. In the Grounds of Appeal it was stated that he concentrated rather on the similarities than on the differences between the facts in the instant case and those in R v Ho Wai Wan Cr App No 201 of 1982 (unreported). The facts were indeed very similar save that the sum stolen in Ho Wai Wah was somewhat greater, being $570,000, but, it is submitted, there was much clearer evidence of premeditation. In that case a sentence of nine years imprisonment was reduced to six on appeal. Miss van der Eb, with some celerity, referred us to a number of further authorities including the case of R v Peter Scales (1987) HKLR 583 which, it is suggested, might have illustrated the application of double standards by the courts in imposing shorter sentences for professional men, who might be thought, liable to suffer more acutely by being committed to gaol, than for those coming from humbler strata of society. If that ever was the case we trust that the principles enunciated in R v Barrick (1985) 81 Cr App Rep 78 and A-G v Chan Chi Yim and Anor AR No. 21 of 1987 (unreported) have laid that ghost to rest. In any event this Court dismissed Mr Scales' application for leave to appeal against a sentence of 18 months imprisonment for a major theft stating that he had "achieved a sentence smaller than we think proper.

9. In R v Barrick Lord Lane CJ emphasised the propriety of immediate sentences of imprisonment where breaches of trust were involved. Coming, however, to the suggested guidelines, relative to the amounts of money involved, we are of the opinion that, rather by analogy to awards of damages for personal injuries, the differing economic and social conditions and relative wage rates in Hong Kong demand a distinctive and differing approach.

10. Having considered what would have been an appropriate sentence had this applicant contested his guilt our answer, in the light of not altogether consistent authorities, is five years imprisonment. As there was a plea of guilty, albeit once the applicant surrendered and confessed it was inevitable, a discount falls to be made. The proper discount here, we believe, is one year. In the premises we find that the trial judge erred in his approach, allow the application for leave to appeal, treat this as the hearing of the appeal, quash the sentence of five years imprisonment and substitute a sentence of four years.