R. v. YIU KUI SIN

IN THE COURT OF APPEAL

1996, No. 26
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. The applicant faced two charges of theft before Deputy Judge Andree-Wiltens sitting in the District Court. He was found guilty after trial of the first charge and sentenced to 18 months' imprisonment. He was convicted upon his own plea of the second charge and sentenced to 8 months' imprisonment. The sentences were ordered to run concurrently. He now seeks leave to appeal against his conviction on the first charge and against sentences on both charges.

2. The grounds of appeal against conviction is that there was no evidence against him. He also disputes the evidence that a person was sent to his home in Dong Guan County and there transported some of the stolen cloth to Shanghai.

3. This morning, he repeated to us the evidence he had given in the court below. The gist of which was that out of negligence he had sold quantities of cloth to a Mongkok tailor without the authority of his employer, a Mr Cheng. When Mr Cheng discovered the loss of the cloth, a discussion was held between him and the applicant, the result of which, according to the applicant, was that an agreement was reached whereby some $131,000 was paid as full compensation for the employer's loss. However, some six months after this agreement, the employer reported the matter to the police resulting in his arrest.

4. The judge in his Reasons for Verdict referred to the applicant's cautioned statement in which he clearly admitted to having stolen the goods particularised in the first charge. The statement then went on to detail the agreement reached between employer and employee which resulted in $131,000 being paid. If there was such an agreement and the amount paid, this was something that occurred after the crime of theft had been completed. The judge was therefore perfectly entitled to rely on the cautioned statement and find the applicant guilty of theft on the basis of admission made in the cautioned statement.

5. For this reason, the application for leave to appeal against conviction must be dismissed.

6. We now go on to deal with sentence. The judge, in assessing the appropriate sentences to be passed on the two charges, adopted a starting point of two years as a totality. Having regard to the applicant's clear record, he reduced the total to one of 18 months.

7. He rightly observed that the partial recovery of the stolen goods was not a mitigating factor because the finding of the goods was fortuitous and not through any effort on the part of the applicant. In the circumstances, therefore, the discount given for good character was a generous one.

8. However, the judge did not specifically address the question nor did he make any finding as to the nature of the payment of $131,000. That the payment was made was not disputed. But it is important for the judge to state definitively whether it was a payment in full settlement of the value of the cloth or for any other purpose.

9. In the absence of any finding in this regard by the judge, we are driven to give the applicant the benefit of the doubt and assume that this was payment towards the value of the two lots of cloth. It will be noted that the value of the first lot of cloth was $700,000 for 4,700 yards of fragmentary cloth; the value for the second lot was $56,512.50 for 207 yards of fragmentary cloth.

10. Giving credit then to the applicant for making the payment as he did, we think it is proper to reduce the sentence by three months on each count. The sentences are to run concurrently, resulting in a totality of 15 months.