KWOK YEE, WILLIAM v. R.

IN THE COURT OF APPEAL

1993, No. 452
(Criminal)

___________

_______________

J U D G M E N T

_______________

Silke, V.-P.:

1. This is the judgment of the Court.

2. On 10th August 1993, the applicant, William Kwok Yee, appeared before Stock J. for trial upon an indictment which contained twenty-nine counts. He pleaded guilty to nine counts of theft, six counts of false accounting and five counts of forgery of a public document with intent to defraud or deceive. He pleaded not guilty to three counts of theft and six counts of forgery of a public document. In respect of those counts the Crown offered no further evidence.

3. He was sentenced to a total period of 6 1/2 years' imprisonment. The majority of the counts were interrelated though count 12 was a count separate from the rest.

4. The judge clearly approached the basis of sentencing by looking at the totality of the offences. We do not think it necessary here to set out each individual sentence save to say this, that in respect of count 12 the judge did contemplate making the sentence consecutive to the rest but, again viewing the criminality of the offences overall, he thought this would be excessive.

5. The applicant now seeks leave to appeal against the sentence. Mr. Macrae, who appears for him in this court, takes two main grounds which he submits indicate, if successful, that the sentences were manifestly excessive. First, that the global starting point of 8 1/2 years taken by the judge was, in all the circumstances, manifestly excessive and, allied to that, he submits that when the judge said these offences came

"into the broad band of the worst of their kind though within that band I make allowance for the fact that the sums involved, while substantial, are not within the massive category of such cases as Dominic Cheung [1987 HKLR 788] and Shamsuddin [1987 HKLR 826]"

he was in error.

The second main ground, which stands independently from the first, was that the trial judge gave insufficient discount for matters advanced on the applicant's behalf in mitigation.

The facts

6. Generally, the background facts were these and we take what immediately follows from the Statement of Facts admitted at the trial:

" The defendant, aged 47 years was formerly a solicitor admitted to practice in Hong Kong and working as a partner with the firm Messrs. Fairbairn and Kwok solicitors ('F & K'). He subsequently withdrew from the partnership and at the time of these offences he was engaged as a consultant to the firm.

At some time prior to 1985 a Canadian citizen by the name of Robert Clive Gardner Q.C. visited Hong Kong and became acquainted with the defendant. He, and others with whom he was associated, were interested in investing in Hong Kong. Gardner was a director of a Canadian company known as Mandarin Capital Corporation ('MCC') and in 1985 MCC established two subsidiary companies in Hong Kong, one of which was called Can Asia Capital Co. Ltd. ('Can Asia'). This company was incorporated for the purpose, initially, of purchasing Hong Kong real estate. Later it was intended to be used as the take-over vehicle of a deposit taking company called Financial and Investment Services for Asia Ltd. ('FISA'). F & K received instructions to act for Can Asia and the defendant was appointed a director of the company.

In relation to Can Asia the defendant's main role was to make use of his knowledge of the local real estate market to find suitable investment properties. It was planned that Can Asia would pay a deposit upon these properties and then extend the completion time with a view to selling them at a profit.

In 1985 Can Asia opened an account at the Union Bank of Switzerland ('UBS') with a deposit of US$3.08 million provided by MCC. The only person authorised to make withdrawals and transfers from the account was Gardner. Gardner would authorise the release of monies by the bank to the defendant for use in these property transactions. The normal procedure was for the defendant to identify an appropriate property and then contact Gardner by telephone and discuss it with him. If Gardner was persuaded to make the purchase he would arrange the release of the necessary monies to the defendant. The defendant would then contact the bank, confirm the release of the monies, and give further instructions to the bank as to the disposition of the funds to various property vendors that he specified. The bank, believing him to be the bona fide agent of Can Asia and F & K, complied with his instructions.

Counts 1-3, 5-7 and 9-10 in the indictment, to which the defendant has pleaded guilty, are occasions when the defendant dishonestly persuaded Gardner to release monies to him in respect of bogus transactions. These offences were committed between 15.8.85 and 31.12.85 and involved thefts totalling HK$15,872,250.

For six of these non-existent purchases the defendant created property files and placed in each of them certain forged documents - namely 5 Agreements for Sale and one Assignment - which purported to show that Can Asia had entered sale and purchase agreements with the fictitious vendors and had in fact paid deposits on these fictitious purchases. The counts in the indictment concerning these documents are counts 13-18.

For five of the purchases the defendant also created false and forged Government Land Registry Records in further support of his pretence that genuine acquisitions had taken place. The counts in the indictment in respect of these documents are counts 19-23."

7. Count 12 needs to be dealt with separately. Fairbairn and Kwok had a client company called Golden Emblem. For business purposes, a sum of US$1 million was placed in Fairbairn and Kwok's trust account to be held by them on behalf of Golden Emblem. The applicant was Golden Emblem's solicitor. The applicant fraudulently obtained from a Mr. Tony Lau, a director of Golden Emblem, samples of his signature. In December 1985 the applicant gave to Mr. Martin Fairbairn, the senior partner of Fairbairn and Kwok a document purportedly signed by Mr. Lau which authorised the release of US$1 million to a Swiss bank. Mr. Fairbairn believed the document to be genuine and approved the release. This money went from Fairbairn and Kwok's trust account to the Swiss bank via the account of Can Asia and ending up in the account of a deposit taking company called Financial and Investment Services for Asia Ltd. - "FISA". Can Asia was in the process of a takeover bid for FISA. As a result of the applicant's theft from Can Asia, there were insufficient funds in the account for him to carry out the instructions of Mr. Gardner in relation to the takeover. The applicant used Golden Emblem money to conceal those earlier thefts from Can Asia. Over all the total sum stolen was HK$23,622,250. The total loss, and reasons for this will become apparent later, was HK$15,872,250.

Background

8. In the early 1980s, William Kwok Yee was a well respected member of the solicitors branch of the profession. He had considerable standing in the community. The very large number of character references which were placed before the judge and which he considered, as have we, indicate how well thought of he was. His friends and professional colleagues were shocked and unbelieving when knowledge of his offence became public. He was married with two sons and we have been moved, as no doubt was the trial judge, by that which his wife and his sons have said on his behalf. Both his wife and his two sons are now living in the United States of America.

9. Having graduated in 1971 by way of an external degree at London University, the applicant started articles with a firm of solicitors in London. In 1972, he passed his Solicitors' Final. He married his wife when doing his articles. He was admitted as solicitor in the Supreme Court of Hong Kong in 1972 taking up a position of assistant solicitor with a firm in Hong Kong and then, in 1973 setting up with Mr. Fairbairn the firm of Fairbairn and Kwok in equal partnership. This firm prospered.

10. In 1975, a Mr. Robert Wang joined the firm which then changed its name to Fairbairn, Kwok and Wang. The firm continued to prosper. In 1979 there was a partnership disagreement between Mr. Fairbairn and Mr. Wang and the partnership was dissolved - the applicant remaining with Mr. Fairbairn. The firm continued to prosper and grew to 5 junior partners and 15 assistant solicitors.

11. As the economy of Hong Kong prospered in the late 70s and early 80s, the applicant availed himself of investment opportunities provided by clients of the firm. He used his savings, and credit and loan facilities he had with his bankers, to invest very substantially in the businesses of his clients. In 1984 there was a business collapse. The applicant was fully involved. He lost $6.8 million in one company which went into liquidation and $8 million in another. He lost $5 million when the Overseas Trust Bank collapsed. The applicant was then in grave financial difficulties. He could not make the necessary monthly loan repayments. Most of his wife's savings had also been lost.

12. At this time he came across a woman client for whom he had once acted and who was then operating a form of finance institution in Macau. He went to Macau to visit her and told her of his problems. Her finance institution was unable to help because the applicant could provide no security.

13. This lady mentioned to him a method of obtaining ready cash by using a system run by organisations described as "chips agencies". These agencies obtained special chips from the Macau Casino and then sold them to prospective, wealthy, punters at a discount. The punter paid by way of postdated cheque. The chips could not be cashed, they had to be used at the Casino's gambling tables. When a player won he would be repaid in ordinary cashable gambling chips. If the postdated cheques were not honoured, interest at 5% would be charged and a further two weeks allowed for payment. Interest would be renewed every two weeks indefinitely.

14. The applicant was introduced to a Mr. Lau who was the Managing Director of South East Asia Service Centre for the Casino of Sociedade de Turismo e Diversoes Macau - "STDM". The applicant then started to gamble with these discounted chips. He had some winnings. Then he began to lose. By the end of July 1985 he had lost about HK$1 million. His access to the discounted chips was not stopped. His loses mounted so that he was losing between HK$½ million and HK$1 million per week. The applicant lost all interest in the business of his firm, spending most of his time in Macau. He described himself as living in "a walking nightmare". His postdated cheques were being dishonoured but, despite that, he was permitted to sign for further discounted chips. Finally, as further postdated cheques were dishonoured, he was required to make a payment or the matter would be referred to the "collection department" of the Centre. He could not. The collection department threatened to go to the partners of his firm to seek repayment and also to visit his family members. The applicant promised immediate repayment.

The offences

15. He started by withdrawing HK$1 million from a company that his brother used called Red Sun Investments Limited which had overdraft facilities. He brought that to Macau but the collection people were not pleased. He then, on the first series of postdated cheques, owed the sum of approximately $2,100,000. He was required to pay the full of that. His access to discount chips was finally stopped. He was visited at his office by some toughs. He was harassed. He then started the series of thefts which covered a period of four months from 15th August 1985 to 31st December 1985. The Independent Commission Against Corruption did an audit trail which showed that all the money stolen by the applicant went to pay his gambling debts. Indeed some of the cheques were made directly payable to STDM. The Crown accepted that that was where the money went.

16. While the applicant may have been in panic and desperation, as was submitted by his counsel at trial, nevertheless the offences were well planned and deliberate. Fraudulent devices were used to cover up the defalcations. His knowledge gained from his profession, and his status, were put to ill use.

17. During this time the applicant's health deteriorated. We are aware, from medical certificates produced, and which were accepted by the Crown, that he now suffers from a heart condition and from high blood pressure. He also suffers from a medical condition known as sleep apnoea. This is a lack of oxygen during sleep. He has been in the medical wing of the Lai Chi Kwok Reception Centre for most of his remand period and is still detained in that Centre. His condition is presently well-controlled by medication.

18. In early 1986, when Mr. Gardner became aware of missing money he flew to Hong Kong, and the applicant confessed his crimes to Mr. Gardner. Mr. Lau of Golden Emblem was also aware of that which the applicant had done. During the whole of 1986, the applicant remained in Hong Kong and no report to the authorities was made. We would add that, during that period, no attempt seems to have been made at restitution.

19. In 1987 the applicant was charged together with two co- defendants with offences entirely separate from those which we have to consider. Subsequently at trial his two co-defendants were acquitted and, at a much later stage, the Crown offered no evidence in relation to those charges in respect of the applicant. However, once those charges were made, the applicant fled Hong Kong. He went first to the Philippines where he lived a hand to mouth existence for some years before moving to Taiwan where he obtained the right of abode and minor employment. On 17th February 1992, while in transit at Singapore Airport on his way to Indonesia, the applicant was arrested - in fact in respect of the separate charges. He waived extradition and was returned to Hong Kong on 3rd March 1992 where he was arrested for the instant offences. It was only after his departure in 1987 that a report was made in respect of them.

Circumstances leading up to trial

20. The applicant had indicated from the outset his intention to plead guilty. He was committed for trial - a paper committal - in mid 1992 and there were then, clearly, discussions between his legal representatives and the Crown as to the pleas to be made. These culminated, as we have indicated, in the proceedings on 10th August 1993.

21. On the morning the trial started, the first restitution was made. This was HK$1 million made up of HK$500,000 from relatives and friends and HK$500,000 from a Mr. Albert Yeung. None came personally from the applicant. This money was paid to Mr. Lau of Golden Emblem.

22. Mr. Yeung, who still treats the applicant as his close friend, was prepared to employ him, after any sentence imposed had terminated, at a salary of $400,000 to $600,000 per year. Mr. Yeung also said in a statement that he would "guarantee":

"that a significant proportion of his remuneration (and any other payments such as bonus), would be applied towards the balance outstanding."

23. It is a significant factor, and a most unusual one, in this case that both the victims, Mr. Gardner and Mr. Lau of Golden Emblem, placed before the court statements of their faith in the applicant and of their belief that, if given an opportunity, he would make restitution. As Mr. Lau put it in his statement:

"As I have informed his solicitors the arrangement of restitution by way of an outright payment of $1 million with the balance to be repaid by installments after he had served his sentence is acceptable to our company."

24. Mr. Gardner in his statement informed the court that there had been a settlement between himself and the Swiss bank which he had accused of negligence in improperly allowing the payments to be made to the applicant. We do not know the term of that settlement for it contained a provision for non-disclosure. He was confident that, once the applicant was able to take up the employment offered of Mr. Albert Yeung, he intended to honour his obligations in respect of the remaining sums due. The rest of his statement was very supportive of the applicant.

The approach to sentence

25. We are fully conscious, as was the trial judge, that Hong Kong is a business city and its people are "entitled to expect honesty in their dealings in those who carried on their business here." (see Attorney General v. Lee Kun Wai, Application for Review No.6/92.) Further, that members of a profession, and we would add, in particular, a solicitor who is an Officer of the Court, have a duty cast upon them to uphold the standards of their profession. (See A.G. v. Tai Chin Wah. Application for Review No.5/92. Further, that the highest standards of integrity are required of people carrying on business or practising a profession (see A.G. v. Shamsudin [1987] HKLR 826.)

26. A breach of trust such as that shown by the applicant betrays the community in which he lives, the special status accorded to lawyers as protectors of the rule of law and violates his professional oath.

27. The courts have not set out guidelines - or tariffs - governing offences of this kind for the good reason that their facts varied infinitely and each case must be treated individually, the overall criminality of the offender being the criterion. The courts are under a duty to adequately punish really serious offences for, if the seriousness of offences is not properly recognized, sentencing judges dealing with less serious crimes could well find themselves in difficulty in giving appropriate weight to the scale of punishment laid down by the legislature (see A.G. v. Shamsudin [1987] HKLR 826.)

As the judge here said at page 74 of the bundle:

"A starting point is reached before and not after consideration of mitigating features. What is required is identification of the category of offence, its broad nature, its essential features."

He was fully aware of the element of "public impact", that is, as we understand him, the impact of these offences on the public at large whatever view the actual victims of the offences might have expressed.

28. In The Queen v. Kwok Lai Ling [1989] 1 HKLR 418, this court, at p. 420, said of restitution:

"A mere promise to make restitution may be broken as easily as it is made. However, actual restitution made voluntarily before criminal proceedings have commenced, or while they are in their earliest stages, may have some relevance to sentencing as evidence of remorse. On the other hand, where it appears to have been made merely in the hope of obtaining a reduction in sentence, it can no longer be seen in that light. The courts do not make bargains with the convicted which have the effect of allowing them to buy themselves out of the penalty for their crimes."

29. Of course, an attempt at restitution, even though here the payment was made by others, is a factor to be taken into consideration. It is not a factor of great weight. We note that, for a period of approximately five years the applicant made no attempt at restitution. Indeed, we doubt, even with the assistance of Mr. Yeung, if full restitution can ever be achieved. The applicant has been struck off the role of solicitors and would be disqualified from any directorship by reason of his convictions. While Mr. Yeung may be prepared to give a personal guarantee and while that might be borne in mind by the two victims here, nevertheless, it cannot bind the applicant though we would add that we accept that the applicant is remorseful and has the intention to at least try to make repayment.

30. Various sentencing cases, which counsel at trial described as "comparables", were produced to the trial judge. Neither he nor ourselves have obtained great benefit from them. They do not provide a formulae for sentence. As we have already said circumstances of commercial fraud can varied infinitely. Each case is very much one which depends upon its own facts.

The judge's approach to sentence

31. The trial judge was perfectly correct in adopting the general approach he did - one of the overall totality of sentence. He treated the applicant as a man of previous good character and of previous "substantial value to the community". He accepted that the offences were out of character. But he was fully aware, as are we, that, in cases of commercial fraud of this nature, that is usually the case. Were the person not in the position he held it would be unlikely that he would have been able to commit the offences in the first place. He considered these offences to be bad offences of their kind. He bore in mind that the maximum sentences relative to the offences were theft 10 years' imprisonment; false accounting 7 years' imprisonment; forgery 3 years' imprisonment - that is at the time these offences were committed.

32. Mr. Macrae has submitted that, in approaching his starting point, the judge in effect put the cart before the horse when he said at page 75, having set out the matters of the breach of trust and the substantial component of general deterrence necessary in any sentence he passed so as to mark the very serious breach of the high standards expected of a man in the applicant's position:

"Those are the factors, so it seems to me, that establish the starting point. They carry these offences in my judgment into the broad band of the worst of their kind though within that band I make allowance for the fact that the sums involved, while substantial, are not within the massive category of such cases as Dominic Cheung and Shamsuddin."

33. What the judge should have done, says Mr. Macrae, is first consider the circumstances of this particular case and arrive at the proper starting point. Reaching it - a course the judge in fact did - before the consideration of mitigating factors and not, as it is suggested he did, by finding initially that these were bad offences of their kind so that they immediately fell into the "broad band" to which the judge made reference.

34. We have given earnest consideration to the arguments persuasively presented to us by Mr. Macrae but we are not persuaded that, whatever approach the trial judge may have adopted, a starting point for the overall criminality shown here by a person in the applicant's position of 8 1/2 years was a starting point so severe as to warrant our interference. We acknowledge that the starting point was high but then so was the gravity of the offences and so was the applicant's breach of trust. We note that in R. v.Bernard Kuit Shu Yip [1990] 1 HKLR 459 the Court of Appeal said that for serious commercial crime, of the nature there, the appropriate sentence should be "at least six years".

35. While we accept that breach of trust by solicitors is, fortunately, rare nevertheless the element of general deterrence must play a large part in the sentencing process were such does occur.

36. In the event, we would not interfere with the global starting point of 8 1/2 years.

Discount

37. A great many of the matters which the judge was entitled to take into account when discounting the sentence of 8 1/2 years to 6 1/2 years, as he did, have already been referred to in the foregoing part of this judgment. While the applicant did not contest his extradition from Singapore, nevertheless he made no attempt to surrender himself to emphasis his remorse. The judge was not impressed by the efforts at restitution nor, with respect, are we. While we do bear in mind the applicant's promise and the views of his victims, it is eight years now since those offences were committed. The applicant was in Hong Kong for the whole of one year. Nothing was done until the morning of the hearing.

38. Having said all that, in addition to the pleas of guilty finally entered there were mitigating factors. We say "in addition too" because the strongest mitigating factor of all was the plea.

39. Generally, pleas of guilty are to be encouraged and that encouragement can only be given by a substantial reduction in sentence from that which would have been imposed after a full trial. Pleas of guilty save a great deal of taxpayers' money, the time of witnesses and the time of the court. Of that last, we do not mean to imply the convenience of the court but that the time saved can be put to good use, in what are presently very over-crowded lists, by the advancement of the trial dates of other defendants many of whom may well be in custody. In particular in commercial crime it has, in recent years in Hong Kong, been all too apparent that these trials can take an inordinate length of time and involve very substantial financial commitments by the prosecuting authorities - both in the preparation for trial and in the trial itself. Very careful as the trial judge was - he adjourned overnight to consider sentence - in reaching the conclusions he did we do not think that the element of the plea was given the discount it deserved. We accept that, while an indication of a plea of guilty was given at a very early stage indeed, it was not implemented until the day of trial. We accept that tracing the evidence in this case must have entailed costs by the prosecuting authority. Nevertheless, we feel in all the circumstances of this case, bearing in mind all of the mitigation and with particular reference to the pleas of guilty, that a greater discount should have been given. An overall sentence of 5 1/2 years would, we think, have been appropriate.

40. Given the multiplicity of sentences which it was necessary to pass in respect of the counts involved, we think the best way to effect this would be to set aside the sentence on count 1 of 6 years and substitute therefor a period of 5 years. There will be a similar alteration to the sentences on counts 2, 3, 5, 6, 7, 9 and 10.

41. In respect of count 12, although we fully appreciate the judge's view that this might well have been made to run consecutive or partly consecutive to all the others, nevertheless, we would not disturb his very proper global view that it would be wrong to go higher than 8 1/2 years. We would, however, reduce the sentence on count 12 to conform with the overall sentence which we have indicated would have been appropriate. We set aside the sentence of 6 1/2 years on count 12 and substitute for it a sentence of 5 1/2 years.

42. We give leave, treating the hearing of the application as the hearing of the appeal and allow the appeal to the extent indicated.