HKSAR v. YAMAGUCHI KATSUHIKO

IN THE COURT OF APPEAL

1997, No. 145

(Criminal)

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J U D G M E N T

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Yeung, J. (giving the judgement of the Court):

1. The Applicant, Mr. Yamaguchi Katsuhiko pleaded guilty before Judge Whaley in the District Court to 7 charges of theft. In respect of each of the 7 charges, he was sentenced to 2 years and 8 months' imprisonment to run concurrently. He now seeks leave to appeal against such sentences.

2. The Applicant is a Japanese national. In August 1995, he was sent by Semba Ltd. of Japan to work in its subsidiary company in Hong Kong, that is the Hong Kong Semba Ltd. as a Director and Overseas Business Consultant. For a period of about 4 months from December 1995 to March 1996, the Applicant on 7 separate occasions dishonestly obtained a total of about $2.4 million from the Hong Kong Semba Ltd. He withdrew, with the assistance of a subordinate cash from the company account and he pocketed the money without the authority of the company. After the embezzlement was discovered in April 1996, the Applicant's employment was terminated and the matter was then reported to the police. His name was put on the stop list and he was arrested in May 1996 at the immigration check point at the Hong Kong International Airport when he was trying to leave Hong Kong.

3. It was suggested in mitigation before the trial judge that the offences were committed because the Applicant incurred large losses in speculative and imprudent investment. There was also the suggestion that he lived beyond his means by purchasing an expensive house and indulging in corporate entertainment. As a result he had to borrow money from loan sharks who threatened to do harm to the Applicant and his wife when he was unable to repay the loans.

4. We must state at the outset that those matters are not really mitigating factors as such. What we cannot ignore, as pointed out by the judge is that the Applicant had betrayed the high degree of trust placed in him by his company. The Applicant committed the offences on 7 separate occasions throughout a period of about 4 months and the amount involved is very substantial. As pointed out by the judge, his company will not be crippled by this financial loss but it is also clear that the Applicant will not be able to make any restitution to the company. In this appeal, in what can be described as a rather emotional address by the Applicant himself, he has set out his personal background and the circumstances in which the offences were committed.

5. He points out his dedication and contribution towards his company. He points out that such effort on his part considerably reduced the financial risk of his company. The Applicant suggests that the trial judge had not taken into consideration his guilty plea. Such suggestion is clearly incorrect. The learned judge adopted a starting point of 4 years' imprisonment and reduced it to one of 2 years and 8 months' imprisonment because of the guilty plea of the Applicant. The judge pointed out that such guilty plea reduced the court's time and the public expense. The trial judge was clearly affected by the remorse shown by the Applicant.

6. We accept that the offences were out of the Applicant's usual character. We also accept the many good deeds that the Applicant had done in the past. But offences involving breach of trusts are serious offences, particularly when large sums of money are involved. The judge had taken into consideration all the mitigating factors advanced on behalf of the Applicant and the 4 years starting point in the circumstances is, in our view, a correct one. In fact the starting point of 4 years is a fairly lenient sentence but the judge justified that clearly because of the rather special circumstances of the case.

7. We cannot help but have some degree of sympathy for the Applicant but we are unable to say that the global sentence of 2 years and 8 months' imprisonment is in any way manifestly excessive or wrong in principle.

8. In the circumstances, the application for leave to appeal against the sentences must be refused.