THE QUEEN v. ERIC CHAN SHU KEUNG

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J U D G M E N T

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Hon. Yang, C.J.:

1. This is an application for leave to appeal against sentences on 109 counts of theft, the totality of the sentence is six years' imprisonment.

2. The applicant pleaded guilty before Mr. Justice Bokhary on the 23rd April 1991. The facts admitted by the applicant were as follows.

3. The Northern Trust Company ("the Bank") is incorporated in the United States of America, having its head office in Chicago. The Bank opened a branch office in Hong Kong in 1973. That branch became a licensed bank in 1978. The branch operated banking operations in Hong Kong from that time onwards.

4. The branch was closed on the 25th October 1989. It was managed by a general manager who was directly responsible to the head office in Chicago. There were several departments within the branch, one of which being the Operations Department. Under the Operations Department were three sub-departments, namely, the Bills Department, the Settlement department and the Accounts Department. The applicant was the Operations Manager. He had been employed by the Bank in that capacity since 7th April 1981, and he resigned on the 16th March 1989.

5. In late 1988, the Bank conducted an internal check on the operations system within the Hong Kong branch. As a result of the check, it was discovered in early 1989 that bank statements relating to their account with Bank of East Asia were missing and that no records regarding this account could be found. This discovery was made after the resignation of the applicant from that Bank.

6. Further enquiries revealed. that the applicant had instructed the Bank of East Asia to send all statements relating to the Bank of East Asia account to a post office box. This instruction was not authorised by his superior. A further discovery was that the monies from the clients' accounts had been removed without authority. A firm of accountants which was employed to conduct the investigation discovered that 109 cash cheques, totalling $8,507,000 and corresponding to the 019 charges of theft referred to earlier, had been drawn from the Bank of East Asia account. All these cheques had been signed by the applicant and cashed by him. His signatures on those cheques have been identified by the former staff members of his branch. All those 109 cheques had been endorsed with the applicant's signature prior to their being cashed.

7. After leaving his employment, the applicant emigrated with his family to Australia. He was arrested by the Australian police in July 1990 and voluntarily came to Hong Kong in September of the same year, having waived his right under the Australian law to an extradition hearing.

8. His co-accused, who was a junior officer in his branch, pleaded guilty to 20 charges of theft of a similar nature and was sentenced to a total of four years' imprisonment.

9. Before the sentencing judge, the applicant's counsel put forward certain matters in mitigation, namely, that he was the sole bread winner of his family; that he had lost his job, career and good reputation; that at the age of 44 it would be very difficult for him to start afresh; that he had now lost his right of residence in Australia; that he was a man of previous good character; that he had pleaded guilty to charges; that his health was failing; and that he waived extradition proceedings from Australia.

10. The judge in passing the sentences took into consideration all that was said by counsel in mitigation. He noted the amount of money stolen in a period of two years from a bank in which he was the Operations Manager. The judge referred to his senior position and his position of trust. It was obviously a course of conduct pursued systematically over a long period of time, causing considerable loss to his employers who held him in trust. Reference was made to his having become infatuated with someone whose influence upon him had been disastrous, though we are not aware of any details in that regard.

11. It was urged upon us this morning that the trial judge had failed to take into proper consideration all the mitigating factors referred to above. It was further said that the disparity between the sentence imposed upon him and that upon his co-accused must have caused him a sense of grievance. We do not agree. Obviously, the difference in the sentences imposed was due to the senior position which he held in the Bank in contradistinction to the relatively junior position of his co-accused. It would appear that in the case of the co-accused, there was evidence that he was under the influence of someone senior to him.

12. In the submission in mitigation by counsel for the co-accused, the applicant's name was mentioned a couple of times in an attempt to show that the co-accused came under the applicant's influence. This the judge quite clearly put out of his mind. He said, "I put out of my mind entirely the possibility that that person was your co-accused (i.e. the applicant). That I do in his interest. In your interest, I would proceed on the basis that you were under some influence."

13. So the argument advanced before us this morning that the judge might be perceived to be prejudiced against the applicant in the light of what was said in mitigation on behalf of Mr. Luk does not hold water.

14. Another complaint made this morning is that the judge in assessing sentence failed to indicate a starting point. Having considered the facts of the case and also the reasons for sentence, it is very likely in our view that the judge had adopted a starting point in the region of eight years. If the starting point was in fact eight years, then a discount of two years to bring it down to six years would be an entirely appropriate discount.

15. For all these reasons, we would dismiss the application for leave to appeal against sentence.