HKSAR v. TANG HUNG KEE

CACC563/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 563 OF 2002

(ON APPEAL FROM DCCC NO. 795 OF 2002)

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J U D G M E N T

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The applicant pleaded guilty in the District Court to 36 charges of theft and one charge of attempted theft. He was sentenced to 5 years imprisonment on each charge concurrent.

2. He now applies for leave to appeal against sentence. His grounds of appeal are :

(1) The prosecution should group the separate charges together instead of laying 37 charges. This misled the judge and was unfair to him.

(2) He was refused legal aid. Without the assistance of a lawyer, he misunderstood that he had to admit all 37 charges before he would be given one-third discount. In fact, he had denied part of the charges (the part of the video recording).

(3) The sentence was heavier than other similar cases. The judge did not consider that he had returned to Hong Kong to surrender to the police and he had pleaded guilty to save time. Since he had shown remorse, he should be given more than one-third discount. The starting point adopted by the judge did not take into account that he had surrendered himself.

(4) The prosecution misled the judge that he was a frequent offender whereas in fact his last sentence was 12 years ago.

(5) He had shown remorse.

3. He now submits two further grounds :

(1) The judge did not consider the reason why he committed the first offence 12 years ago.

(2) He is a diabetic and cannot control his behaviour and was not in a proper mental state at the time of the offence.

4. The facts admitted by the applicant are as follows. The applicant was an accounts clerk for two companies Menton Technology Ltd (MTL)and Pure Class Service Ltd (PCSL) between 1997 and 2001.

5. On 19.2.2001 the applicant deposited a cheque of PCSL in the amount of $450,000 into an account of a Mr Tang in the China State Bank. The Bank found the cheque suspicious and phoned PCSL. Payment of the cheque was stopped. Subsequently a general check on the accounts in MTL and PCSL revealed that apart from the cheque which had been stopped payment, the applicant had between February 2001 to December 2001 forged 36 cheques in various amounts drawn on the companies accounts with the China State Bank and the HSBC. The payments were not authorized by the companies nor by their owners. The total amounts involved were $6,142,400 in cheques drawn on the China State Bank account and $2,598,000 in cheques drawn on the HSBC account. Altogether, $8,740,400 were stolen. The amount involved in the attempted charge was $450,000.

6. The applicant spent $559,339 to purchase a flat in Zhuhai.

7. The applicant returned to Hong Kong on 8.4.2002 and surrendered to the police and under caution he admitted the forgeries and stated that he had used the money in stock investment but he lost the money. Part of the stolen money was lost in gambling in Macau.

8. In sentencing the applicant, the deputy judge accepted that with a loss of some $9 millions, problems were bound to have arisen to the companies. The judge took into consideration that some money had been returned to the companies by HSBC and that legal action had been taken with regard to the Zhuhai property which was theft proceeds.

9. As regards the applicant's previous conviction for theft in 1990, the judge said: "those who continue to offend after being dealt with by the courts are bound to be treated more severely."

10. The judge also took into consideration the mitigating factors the applicant submitted including the fact that he left Hong Kong not because he wanted to evade responsibility but because he wanted to see his sick wife and new born baby and he had returned to Hong Kong to surrender to the authorities and cooperated and made full admissions.

11. The judge concluded that having regard to the amount involved in these breach of trust offences, the period over which the applicant practised the series of thefts, the loss to the companies, and the personal use of the stolen money and his previous conviction, based on Wong Kay Din CAAR No.7 of 1998 (unreported), a 7 1/2 year starting point was appropriate and he considered that an overall sentence of 5 years should be imposed.

12. The applicant was aware of the charges against him and he fully appreciated the consequences of pleading guilty. The proceedings were conducted in a language understood by the applicant. There was no evidence to indicate that he had been misled into pleading guilty. He was aware of the discount for pleading guilty albeit he was not legally represented. He admitted the facts which founded his conviction.

13. The question is: Is there any ground to argue that in all the circumstances of the case, the total sentence of 5 years imprisonment after plea for 37 counts of theft and attempted theft, involving an amount of over $9 million, is manifestly excessive or wrong in principle?

14. Having regard to the authorities, especially Wong Kay Din where the guidelines state that for breach of trust offence involving $3 to $9 million the sentence should be in the range of 5 to 9 years, the answer to the above question must be "No".

15. The application for leave to appeal against sentence is therefore dismissed.