ATTORNEY GENERAL v. FRANKIE NG TZE KIN

Headnote

Breach of trust: Factors for consideration R. v. Ying Lai Chau CA 599/89.

IN THE COURT OF APPEAL

1994, No. 3
(Application for Review)

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. Frankie Ng Tze Kin appeared for trial before Her Honour Judge Chua on a charge sheet containing ten charges. Two of those charges were not proceeded with, the witness being unavailable, that is the third and the fourth. He was convicted, after trial, of the remaining eight charges.

3. The first set, that is charges one and two, related - charge one - to uttering a forged document which was a cheque collection authorization on an account in the Citibank, the account holder being Miss Lau Ka Ling. The second charge was theft, that is the theft of the actual cheque books received by the respondent on foot of the forged documents. The rest of the charges related to the use of forged cheques which came from the cheque books he received with an associated charge of theft of the money he got as a result of the use of forged cheques. This occurred on three occasions, 13th July, 29th August and 3rd September 1991. He was sentenced to a period of imprisonment of 13 months on each of the charges upon which he was found guilty after trial and those sentences were ordered to run concurrently, giving a totality of 13 months.

4. The Attorney General, pursuant to leave granted on 11th March 1994, asks this court, under the provisions of section 81A of the Criminal Procedure Ordinance, to review those sentences as being manifestly inadequate or wrong in principle.

5. The background to the offences was that the respondent, in 1989, was employed by Miss Lau, who was a television actress, as a driver. Miss Lau was the director, shareholder and sole authorized signature of her production company, Carina Production Company Limited. In 1990, the respondent committed a traffic offence which resulted in the loss of his driving licence. He was thereafter employed by Miss Lau as a personal assistant. Amongst his duties was the collection of cheque books on her behalf. It was clear that Miss Lau did not keep a very close eye on her cheque books or her accounts, she having little knowledge of English. It was equally clear that the respondent took advantage of this. He left her employ at the end of 1990 taking with him a chop which was the chop of the production company. He collected the cheque books for the first time on his own behalf in January 1991. It was only in September 1991, on the last occasion upon which an offence was committed, that queries were raised by the bank and the matter came to the attention of Miss Lau which resulted eventually in the charges being brought against the respondent.

6. As the trial judge said in her Reasons for Sentence, the history of this matter showed an early intention to cheat Miss Lau which also required a degree of planning. These offences were manifestly planned and designed. She thought this fell, as she put it, "in a sense into the breach of trust cases".

7. It is the contention of Mr. Saw, who appears for the Attorney General in this court, that, first, the starting point, which was clearly 13 months, was far too low. Second, that this was a clear breach of trust not merely "a sense of" breach of trust. Further, it was a serious breach of trust because of the responsibility which Miss Lau placed on those who assisted her in her financial matters, one of whom was the respondent. Thirdly, it is submitted that the trial judge was wrong to make all the sentences concurrent, these being separate offences and consecutive sentences should have been considered.

8. Mr. Mullick, who appears for the respondent in this court, realistically accepts that the totality of the sentence was too low and that he could not seriously resist the application. He invites us to consider the various matters which are set out in R. v. Ying Lai Chau, Criminal Appeal No. 559 of 1989 which related to the decision of the English Court of Appeal in Barrick (1985) 81 Cr.App.R. 83. In Barrick, Lord Lane LCJ had set out a number of matters to which the court should have regard in determining sentence in breach of trust cases. As my Lord Macdougall in delivering the judgment of the court in Ying Lai Chau said at page 3:

"We respectfully agree, however, that the factors referred to by Lord Lane at page 82 as being matters to which a court would no doubt wish to pay regard in determining what the proper level of sentence should be, are of as much relevance in Hong Kong as they are in England."

At page 4, he set out those factors.

9. We accept that certain of them are not of relevance to the particular circumstances of this case. Item (i) and item (ii), that is the quality and degree of trust and the period over which the fraud or the thefts which have been perpetrated, are. There was no real mitigation in this case. We note however that the trial judge did say that the defence raised at trial was "malicious and cowardly". That is not, of course, a matter of aggravation of sentence and, given the sentences imposed by the trial judge here, she clearly did not use it as such. But we consider that those sentences were manifestly inadequate. We accept that, generally, where there are separate offences of this kind, sentences should be consecutive but the totality principle may necessitate an adequate sentence being imposed on one charge without the other sentences being made consecutive, given the sentencing judge shows himself or herself to be aware of the nature of consecutive sentences and when they are required.

10. Having indicated our view that these sentences are inadequate, the Attorney General's application is granted. The matter of the proper sentence is now for our consideration. Bearing in mind all that has been said to us and the nature of this case, we think that the total criminality of the respondent required a sentence of 2 1/2 years' imprisonment. These are Review proceedings and, as we are substantially increasing the sentence already passed, we think the respondent to be entitled to a discount on that which would have been the proper sentence.

11. Splitting the overall sentence which we consider to be the appropriate to reflect his total criminality as between each of the eight charges would necessitate an unnecessary mathematical exercise. We impose a sentence of 2 years and 3 months on each of the charges to run concurrently.