THE QUEEN v. LAM LAI CHUN

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J U D G M E N T

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Clough, J.A. :

1. The applicant Lam Lai-chun and her co-defendant Lam Pui-yee ("the co-defendant") are young women who were aged 21 and 23 respectively when they pleaded guilty on the 10th June 1988 in the District Court before His Honour Judge Caird to three charges of obtaining property on a forged document contrary to section 75(a) of the Crimes Ordinance (Cap. 200) and 18 charges of false accounting contrary to section 19(1)(a) of the Theft Ordinance (Cap. 210). They were both sentenced by the judge on the 9th July 1988 when, pursuant to section 81 of the District Court Ordinance (Cap. 336), 150 similar admitted offences were taken into consideration. The defendants were both sentenced to 21 months' imprisonment on each of the 21 charges. The sentences were ordered to be concurrent in the case of both defendants but those passed on the co-defendant were suspended under section 109B of the Criminal Procedure Ordinance (Cap. 221) for two years.

2. The applicant now applies for leave to appeal against the sentence passed on her. The Crown has not applied to review the suspended sentence passed on the co-defendant who has not applied for leave to appeal against that sentence.

3. The charges were specimen charges relating to the systematic defalcations of the defendants during the period between February 1986 and July 1987. During the relevant period the applicant had been the cashier and the co-defendant the book-keeper of Wing On Jewellery Company Limited. They had systematically relieved the company of not less than $580,986 by the alteration of records and the use of false invoices which they had specially printed for the purpose. The proceeds of the offences were shared between the defendants and spent on their Personal extravagances and on the purchase of flats. The offences were eventually detected due to the vigilance of the company's auditors.

4. In his careful and full Reasons for Sentence the judge explained how several days of hearing were required before sentence. There was an adjournment from the 10th June 1988 to the 24th June for probation reports Another adjournment was then necessary to the 1st July to enable Crown and defence evidence to be called regarding the amount involved in all the offences which the applicant was not prepared to, agree but which the co-defendant admitted at all material times. However by the 9th July when sentence was passed the amount of the defalcations and the equality of the share out had been accepted by the applicant.

5. The judge considered that he had to resolve two issues in the sentencing process, namely (1) the question of the appropriate length of custodial sentence which he believed he was obliged to impose and (2) whether suspension of that sentence was an option which was properly available at all in the case of either or both of the defendants.

6. He recognised that he defendants had clearly abused their respective positions of trust and had thereby made of 5580,000 odd of their employer's money. He then dealt with matters in mitigation, starting with matters common to both defendants, namely their clear records and pleas of guilty made at the earliest opportunity on plea day.

7. The Judge then went on to consider other factors in relation to which the defendants did not appear in the same light and with regard to which the co-defendant had made a more favourable impression upon him than the applicant. Thus the co-defendant had for all practical purposes accepted the Crown's figures regarding the scale of the offences, whereas the applicant had sought to put forward reduced figures to the Probation Officer and the court and had not admitted the full amount until the 9th July 1988 when sentences were Passed. He was impressed by the fact that the Probation Officer who had reported fully on both defendants considered that the co-defendant was genuinely remorseful because she had returned to work and had taken steps to compensate the company, whereas the applicant was considered by the Probation Officer to have shown only shallow remorse and to have put the blame for the offences on the co-defendant and sought to evade the applicant's responsibility for the company's loss.

8. He mentioned that the applicant had not worked when on bail whereas the co-defendant had done so and earned money in order to compensate the company. Also the co-defendant's family had been supportive. As regards restitution, the judge was impressed by the restitution made by the co-defendant who, with the help of her family, had paid or procured the payment of $213,000 in cash to the company after she had sold her flat and jewellery and her father had mortgaged his flat for $170,000. In addition the co-defendant's sister had undertaken to pay the company another $100,000 over a five year period and the co-defendant had assured the probation Officer of her intention to continue to work so as to make restitution.

9. On the other hand, the judge observed that the applicant had sold her flat and had paid $50,000 to or towards the discharge of her brother's guarantee to the company for her integrity as its employee.

10. The judge was also impressed by the detailed reports of the Probation Officer which were favourable to the co-defendant who was regarded as genuinely remorseful and anxious to make amends whereas the applicant was not considered to be similarly motivated.

11. In all the circumstances the judge took a most unfavourable view of the applicant whom he regarded as "a calculating, selfish, unscrupulous, unrepentant and amoral young woman." He considered her to be concerned only with her own selfish aims and not with making genuine restitution. On the other hand he was of the opinion that whilst the co-defendant had been "a foolish, vain, greedy young woman", she had subsequently sought to reform herself and, with her family's help, to make such restitution as had been possible to date.

12. Having thus assessed the relevant mitigating factors, other than the clear records and pleas of guilty of the defendants, in a manner favourable to the co-defendant and adverse to the applicant, the judge nevertheless indicated that he decided to draw no distinction between them regarding length of sentence and proceeded to sentence both of them to 21 months' imprisonment concurrent on each of the 21 charges.

13. He considered he had made it abundantly clear that he did not regard the applicant as being such an exceptional case as would warrant a suspended sentence. However, he considered the co-defendant to be such an exceptional case qualifying for a suspended sentence by reason of "the exceptional matters that I raised, in particular restitution, together with the Probation Officer's recommendation and attempt to try and make something of her life by seeking employment during the 'bail-out period'."

14. On behalf of the applicant her counsel Mr. Raymond Yu has raised a number of grounds of appeal in the perfected grounds of appeal against sentence. We are unable to accept his contention that the judge failed to have regard to the fact that the applicant had young children or that he should have passed a lighter sentence for that reason. The criticism of the judge's reliance on the Probation Report carries no weight. The officer gave evidence and was not challenged on any material matter by the applicant's counsel. A point was taken as to which defendant was the instigator but in the case of an offence requiring the full co-operation of both of them during a period of over a year this is not of any real materiality. Mr. Yu contended that the judge had wrongly given weight to the Restitution made by the co-defendant's family who were better off than the applicant's family. However our opinion the judge had ample material before him to justify showing more leniency to the co-defendant.

15. The only ground which is of any substance is that of disparity of sentence in relation to co-defendants whose culpability in relation to their actual offences of fraudulent joint breaches of trust as employees must be regarded as equal.

16. In the light of the guidelines in Barrick (1985) 81 Cr. App. R. 78 which are applied in this court (see A.G. v. Dominic Cheung Kai Man [1987] H.K.L.R. 788 (C.A.)), the sentence passed on the applicant was in our opinion appropriate having regard to the amount involved and making due allowance for the previous clear record of the applicant and her plea of guilty. The question that arises in the light of the authorities cited in Archbold, 42nd edition at page 534, paragraph 5-8 is whether the suspended sentence passed on the co-defendant for the same offences is so disparate that the applicant may be considered to have a justified sense of grievance. In this connection Mr. Yu has relied on The Queen v. Chen A-Ching (Criminal Appeal No. 53 of 1986) and The Queen v. Chan Po-Yee (Criminal Appeal No. 161 of 1987) where disparity was successfully relied upon by appellants.

17. In our judgment the trial judge erred when failing, at the stage when he was determining the proper length of the sentences, to give effect to all the relevant mitigating factors he had found in favour of the co-defendant. In accordance with the settled practice he should have had regard, when determining the length of sentence, not only to the gravity of the offences but also to all relevant mitigating factors. It was only after completing that process that he should have considered the question of suspension: see D.A. Thomas on the Principles of Sentencing, 2nd edition at pp. 241 and 244, Archbold, 42nd edition, page 574 paragraph 5.51; R. v. Trowbridge [1975] Cr. L.R. 295.

18. If the judge had taken the proper course when determining the length of the sentences he would inevitably and properly have passed a lighter sentence on the co-defendant because he was impressed by the mitigating factors in her favour, particularly her genuine remorse and her substantial actual restitution. Whether the judge would have been justified in suspending that lighter sentence in all the circumstances is questionable. However whilst we consider the sentencing process was not followed correctly in this case we do not consider that the applicant has grounds for justified grievance. We are satisfied that the judge was seeking properly to impose a more lenient sentence on the co-defendant to reflect mitigating factors he found in respect of her attitude and conduct after the detection of the offences.

19. The fact that the judge set about this in the wrong way initially by giving no effect to the mitigating factors favouring the co-defendant when determining the length of her sentence and then suspending the sentence in reliance on those factors, does not in our opinion mean that this is a case in which it can be said that there has been unjustified disparity, because it is not a case in which two offenders merit the same sentence for the same offences. There was a real and appreciable difference between them in relation to the mitigating factors after the offences came to light, so a lighter sentence in the case of the co-defendant would have been justified. The decisions of this court relied upon by Mr. Yu are clearly distinguishable in this respect.

20. In our judgment this is not therefore a case where the disparity argument should prevail. The application for leave to appeal against sentence is therefore refused.