THE QUEEN v. LEE KAM WAH

IN THE COURT OF APPEAL

1995, No.591
(Criminal)

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J U D G M E N T

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Liu JA:

1. The applicant was charged in the District Court. He faced 30 sample charges. He pleaded guilty and was sentenced in the District Court by Deputy Judge Andree-Wiltens to 3 years and 9 months.

2. The applicant was the shipping supervisor of a company which ran a business of conveying imported agricultural products from Hong Kong to Mainland. Such relay was conducted by a number of transportation companies. The defendant's then employer had to pay container terminal handling charges. By misrepresentations, he induced these transportation companies into believing that they had to lay out the money for these handling charges on behalf of the defendant's employer, only to be reimbursed at a later date. Thereupon, money was paid into the applicant's personal account by these transportation companies. The applicant misappropriated these funds and the transportation companies were the victims of his frauds. The total sum amounted to HK$1.2 million, covering 126 occasions from December 1990 to September 1993. The sample charges he faced in the District Court involved a net sum of $444,000 odd. At the time of his sentence, the applicant was 29. He had pleaded guilty and saved a five days' trial. We feel that a reasonable and substantial discount should be given to him for his guilty plea.

3. Clearly, he was in a position of trust and he betrayed his then employer. There was a series of calculated frauds spanning over almost 3 years. The amount involved was substantial and the transactions were numerous. We think the starting point for the crimes he had committed should be 4 years. Attempts had been made by the applicant to repay money to the victim companies but there was no evidence that any had in fact been repaid. There was insufficient evidence for the judge to conclude that the applicant attempted to abscond. The applicant has a previous conviction of a similar nature in 1984. Taking into consideration his guilty plea to which a substantial discount ought to be given and the circumstances, we think that this merits a 15-month reduction. The net result would be that the applicant has to serve a term of 33 months i.e. 2 years and 9 months, 4 years less 15 months. In effect, that is a year less than the 3 years and 9 months to which he has been sentenced by the Deputy Judge.

4. We treat his application for leave to appeal against sentence as the appeal itself. For the reasons given, his appeal is allowed. His sentence is set aside and substituted therefor by a sentence of 2 years and 9 months, i.e. 33 months.