HKSAR v. WAT WAI LEUNG

CACC 276/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 276 OF 2000

(ON APPEAL FROM DCCC 414/2000)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant pleaded guilty to four counts of theft in the District Court before Deputy Judge Kelly. He was sentenced to 2 years imprisonment on the first count, 2 years on the second, 8 months of which were to be served consecutively to the sentence on the first count and similar sentences on the third and fourth counts thus making a total sentence of 4 years imprisonment. He seeks leave to appeal against these sentences.

2. The facts were relatively simple and straight forward.

3. The applicant was an assistant accountant with Maeda-Kumagai Joint Venture Corporation ("Maeda") who was the victim of these thefts.

4. Consequential upon his speculative investment activities the applicant found himself to be financially embarrassed.

5. He was able to adjust the autopay arrangements of Maeda. What he did was to provide a mandate to the company's bankers to effect monthly payments to a company formed by himself Pioneer FE whose name was similar to one of the suppliers of concrete to Maeda, Pioneer HK.

6. Four payments were effected.

On 11 March 1998	$720,191.20
On 9 April 1998	$684,124.84
On 11 May 1998	$1,201,371.60
On 22 June 1998	$617,308.58

However the applicant did pay cheques of $414,375.56 and $713,965.14 to Pioneer HK in an attempt to temporarily cover up his offences.

7. The Judge passed sentences on each count in accordance with the principles laid down in R v Trevor Clark [1998] 2 Cr App R 137. In this case which has been applied in Hong Kong in Secretary for Justice v Wong Kay-din CAAR 7/1998 cases involving between ￡17,500 and ￡100,000 merited sentences of 2 to 3 years imprisonment and between ￡100,000 to ￡250,000 sentences between 3 to 4 years imprisonment.

8. It will be appreciated that in round figures the total net amount involved is approximately $2 million.

9. What is clear from the facts of the case is that although four separate charges were laid against the applicant all of the payments fell within the same criminal scheme.

10. The Judge should have approached the case by taking the total amount stolen and then passing a sentence based upon this.

11. Although Mr Yeung at the hearing below made an eloquent plea of mitigation before the Judge it cannot be said there were any particular circumstances which justified the Judge in passing a different sentence to that which would normally be appropriate.

12. This is subject to the observation that there was an unduly lengthy period of time in bringing this case to trial. This was certainly a factor which should have been weighed in the balance.

13. However adopting the Clark guidelines the total starting point should have been 3 1/2 years imprisonment. For his plea of guilty he was entitled to receive the usual 1/3 discount thus making a sentence of 2 years 4 months imprisonment. Although there was a substantial delay as already indicated we do not think that any further discount is called for.

14. The application is allowed. Treating it as the appeal we order that the sentences of 2 years imprisonment imposed on the first and second counts remain the same but only 4 months of the sentence on the second count will be served consecutively to the sentence on the first count. The 2 years imprisonment imposed on the remaining two counts will also remain, but both of them will be served concurrently with the sentences on the first and second counts thus leading to a total sentence of 2 years 4 months having to be served. To this extent the appeal is successful.