HKSAR v. AGUILAR, MARIA PRISCILLA M.

HCMA 1140/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1140 OF 2005

(ON APPEAL FROM ESCC 3151/2005)

____________

____________

_______________

J U D G M E N T

_______________

1.  You appeals seven concurrent sentences of 12 months imprisonment.  The sentences were imposed after you entered pleas of guilty and agreed facts which established that, as an insurance agent employed by one company, you stole the premiums paid to you by six different clients over an 18 month period.

2.  The Magistrate regarded an overall starting point of 18 months after trial as appropriate which he then reduced by one third for your pleas and clear record, imposing the resulting sentence of 12 months on each charge and ordering them to be served concurrently.

3.  If one were slavishly to follow the suggestions in Trevor Clark [1998] 2 Cr. App. R. 137 as adopted by the Court of Appeal in Secretary for Justice v WONG Kay-din  CAAR7/1998, this matter falls well down the lowest bracket which suggests up to 21 months imprisonment for amount up to around $250,000.00:  the aggregate amount misappropriated here was $44,955.00.

4.  However, the amount stolen is not the sole determinant of sentence.  These offences involved a gross breach of trust over an extended period.

5.  The Magistrate plainly regarded as a particularly aggravating feature the fact that these offences were committed by you upon a particularly vulnerable section of the community – one of which you are a member so the devastating consequences of your conduct upon each of the persons, and their families, from whom you stole would have been fully apparent to you.  The effect on the victim was a particular feature referred to in Barrick(1985) 81 Cr. App. R 78 and adopted in Clark and WONGKay-din.

6.  You committed the offences, you told the Magistrate, because you were in need of money to discharge an obligation which you had incurred through your own, earlier, dishonest conduct.  You had become involved in a scheme to falsely secure the promotion of one of your colleagues:  the scheme eventually required you to pay a substantial sum of money supposedly as a premium for a bogus insurance policy.  That left you short of funds so you stole from your clients.  That cannot be regarded sensibly as any form of mitigation.

7.  The sentences are robust, but correct.

8.  The appeal is dismissed and the sentences confirmed.