R. v. WONG MAN FAI

IN THE COURT OF APPEAL

1995, No. 127
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the court):

1. The applicant seeks leave to appeal against the sentence of 18 months' imprisonment imposed upon him by His Honour Judge Caird in the District Court on 13 December 1994.

2. The applicant pleaded guilty to theft contrary to section 9 of the Theft Ordinance.

3. The facts of the case were simple. Due to an administrative error the Kincheng Banking Corporation credited the sum of $763,263.80 to the applicant's account with them.

4. The intention had been to credit this sum to the account of another customer who had the same name as the applicant.

5. When the applicant learnt of this mistake he withdrew $500,000 on 29 November 1993 and a short time later withdrew a further $200,000.

6. According to the plea in mitigation put forward on his behalf by Mr McCoy the applicant took the money to Macau and gambled with it. Judge Caird was informed that all that was left of the money when the applicant returned to Hong Kong was $31,000.

7. The reasons given by the applicant in his affirmation dated 25 February 1995 for his failure to appeal in time was a misunderstanding concerning the advice he was given by an officer in the Correctional Services Department relating to lodging appeals and the functions which may be exercisable by solicitors representing defendants.

8. We agreed to hear this application for leave out of time.

9. There is not a great deal that can be said concerning this case. Clearly the applicant who had previously a good record succumbed to temptation. Amongst the factors which have to be weighed is the amount involved which is quite substantial and the attitude of the applicant when matters came to a head. It is said that almost all the moneys were dissipated in gambling. No proposals were forthcoming for restitution of the funds.

10. Although the applicant had a clear record the trial judge cannot be faulted in rejecting the idea that the sentence could be suspended. Having regard to the amount involved the length of the sentence was not excessive or manifestly wrong although it could be stated that it was on the high side.

11. The application for leave is accordingly dismissed.