R. v. AU WEI KEI

IN THE COURT OF APPEAL

1994, No. 356
(Criminal)

__________

____________________

J U D G M E N T

____________________

Liu JA (giving the judgment of the Court):

1. The applicant faced two charges. The first charge was that he, so to speak, helped himself to certain share certificates held by a securities company for which he worked. The second charge concerned the use of a bogus or dud cheque for the acquisition of some 200,000 shares which were to replace what he had also stolen and sold.

2. The applicant was found guilty on his own pleas and he was sentenced by the trial judge on the first charge to three years and four months' imprisonment, and, on the second charge, two years' imprisonment. His sentence on the second charge was ordered to run consecutively with the first charge after appellant had served two years. The total imprisonment that the applicant had to serve was therefore a four years' term.

3. The applicant feels aggrieved and from his sentences he now seeks leave to appeal. There are three main grounds of complaint. It is argued that the trial judge was wrong in adopting too high a starting point for the first charge. Another ground of appeal deals with the consecutive sentence ordered by the judge. It is contended, on behalf of the applicant, that the wrong committed in the second charge was during the period of the offences he committed in the first charge. Lastly, it is submitted on behalf of the applicant that the totality of the sentences is manifestly excessive.

4. As I have said the applicant stole and sold a large number of share certificates valued at over $1.4 million from his employer. The period within which he stole, as set out in the first charge, was from 26 September 1990 to 9 April 1991. It is common ground between counsel for the applicant and counsel for the Crown that the thieving activities of the applicant for his offences in the first charge came to an end on 3 April 1991. The offence in the second charge was committed also but apparently later on 3 April 1991.

5. In fact, on 3 April 1991 when the applicant was instructed by another employee, one Madam Lui, to retrieve half a million shares of Rose International from the safe of Luckion Nominees Ltd., he made a clean breast of his theft of 300,000 of those shares. He pleaded with Madam Lui, not to alert the employer of the shortfall, and he was told to replace the missing shares before lunch. The applicant replaced the missing 300,000 shares in the same afternoon.

6. Of the 300,000 shares replaced, 200,000 was acquired by the applicant with a bogus cheque in the sum of over $164,000. That forms the subject-matter of the second charge.

7. It was agreed that the proceeds of the thefts went in gambling or re-paying loan sharks debts incurred in gambling.

8. We have been referred to R. v. Ying Lai-chau, [1991]1 HKLR 48. We are not persuaded that the sentencing court in Hong Kong should not pay particular regard to the special social and economic conditions here. We are not prepared to, even if permissible, to accede to the invitation of counsel for the applicant to depart from the views expressed at p.50 D-E by Macdougall, JA, as he then was, giving the judgment of the court in that case. It is to be noted that this Court, then differently constituted, comprised three judges of wide experience in local affairs and sentencing.

9. The trial judge adopted his starting point of five years. We do not regard that as too high a yardstick for assessing the applicant's culpability. The applicant was given a third reduction for his plea of guilty. Counsel for the applicant submits that the judge had overlooked the factors set out in R. v. Barrick (1985)81 Cr.App.R. 78 at p.82. We are not told what mitigating factors were advanced to the trial judge for his consideration. The amount of $1.4 million involved is a good enough indication that the other factors, if any, relevant to the commission of the offences in the first charge by the applicant, must have been overshadowed. No evidence has been adduced to satisfy us that the trial judge had overlooked any material factor relevant to the circumstances concerning the applicant.

10. Having given the applicant a reduction of a third, the trial judge sentenced him to imprisonment of three years and four months. The sentence is neither manifestly excessive nor wrong in principle.

11. The subject matter of the second charge was evidently committed after the shares mentioned in the first charge had been stolen. The cheque was issued on 3 April 1991. The amount of over $164,000 was not insubstantial and the applicant had the audacity to commit another crime in the hope of not arousing suspicion which might immediately expose his activities, the subject-matters of the first charge. The trial judge gave him a two-year sentence after the same discount. The sentences, if ordered to be served consecutively, would have been excessive. The trial judge ordered the sentence of two years for the second charge to run from the end of two years out of the three years and four months' sentence for the first charge, making it a total of four years imprisonment in all, for a loss to the victims of $1.4 million and some $164,000 respectively.

12. The offences in his first and the second charges were committed at different times. The applicant was differently motivated and the victims were different. The applicant was audacious enough to commit yet another offence in the hope of temporarily saving himself from an instant enquiry by his employer.

13. We do not regard the order of the trial judge for the two years in the second charge to run after the expiration of two years of the three years and four months in the first charge as wrong in principle.

14. None of the grounds advanced on behalf of the applicant succeeds. The application for leave to appeal against sentence is therefore dismissed.