THE QUEEN v. CHEUNG YUK CHEUNG

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J U D G M E N T

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1. The appellant pleaded guilty to a charge of theft of 11 boxes of aluminum photograph frames valued at $3,316. He was sentenced to imprisonment for 3 months and ordered to pay compensation in the sum of $1,997.

2. He now appeals against the immediate custodial form of the sentence only.

3. The facts were that as the proprietor of a small transport company he agreed with the manufacturer to deliver 867 boxes of frames to the wharf for shipment to the U.S.A. When the consignment was loaded by the manufacturer on to the appellant's lorry, the appellant's driver complained that there were only 856 boxes. Eventually the driver telephoned the appellant complaining that there was a short delivery of eleven boxes whereupon the appellant went to the factory and supported his employee in his argument with the factory foreman about the shortfall. Eventually, the manufacturer agreed to manufacture and supply eleven more boxes. When the boxes were delivered to the godown, it was discovered that the driver had made a mistake and that 867 boxes had in fact been loaded. Two days later the manufacturer, having manufactured the further quantity amounting to eleven boxes, delivered them to the appellant for shipment to the U.S.A. The appellant, to save face, decided not to admit the mistake, but to cover it up. Eventually, he arranged for his elder brother to dispose of the frames. They were sold for $1,800 of which the appellant received $1,000. When his disposal was discovered, he immediately admitted responsibility to the police.

4. The learned Magistrate quite rightly took the view that this was a case of breach of trust. Although he thought that an immediate custodial sentence was appropriate he, nevertheless, called for a Probation Report. He granted the appellant bail for the period of the adjournment whilst awaiting the report so as to give the appellant time to get his affairs in order. He informed the appellant at the time that by calling for the report he was not excluding the possibility of a custodial sentence.

5. The report submitted by the Probation Officer was most favourable to the appellant. The appellant repeated to the Probation Officer what he had told the police about his motive for committing the offence and the Probation officer's report makes it clear that the Probation Officer was convinced that the appellant's decision to appropriate the goods was not made until he found himself "on the horns of a dilemma" when he discovered that it was his own mistake in the reckoning which led to the eleven extra boxes being delivered to him by the manufacturer. The Probation Officer found him to be "still distraught with his deplorable conduct" and added that it was "really a pity to see a well remarked young man like [the appellant] committing law breaking behaviour as in the present offence". He offered the opinion that the court experience alone would have taught the appellant a useful lesson and was sufficient to deter him from further wrongdoing. It was for those reasons that he thought that probation could be dispensed with in the appellant's case.

6. The appellant at the time he committed the offence was aged 29 and had a clear record.

7. The learned Magistrate by his Reasons for Sentence indicates that he considered the appellant's age, his clear record, his plea of guilty, the matters raised in mitigation, the facts of the case, and the Probation Officer's Report. He accepted that the initial appropriation of the property might not have been premeditated and that the appellant's through weakness might not have been able to admit that he had made an error. However, he regarded the appellant's conduct as a breach of trust and that therefore a custodial sentence was appropriate. He took account of the appellant's cooperation with the police and his willingness to make payment of full compensation and considered that in all the circumstances the sentence of imprisonment of three months was the appropriate sentence.

8. In his appeal against sentence the appellant contends that the learned Magistrate did not give sufficient weight to:

(a)    the appellant's full cooperation with the police;

(b)    his clear record;

(c)    his plea of guilty,

(d)    the circumstances since in which he came into position properly;

(e)    the value of the property and his willingness to pay compensation; and

(f)    the Probation Officer's report.

9. The learned Magistrate's Reasons for Sentence make it clear that he did give weight to (a), (b), (c), (d), part of (e) and (f). The part of (e) to which he does not appear to have attached any weight, is "the value of the property".

10. The appellant also contends that the learned Magistrate placed undue weight on the fact that the appellant was in a position of trust in relation to the victim and that he had disposed of the property at a profit.

11. In relation to the allegation that the learned Magistrate did not give sufficient weight to the value of the property, it must be said that he did in this sense, namely, that he thought that the sum which the appellant obtained by way of profit on the sale when related to the appellant's average monthly earnings of $4,500 was "a considerable sum".

12. In R. v. Barrick 81 Cr. App. R, the Court of Appeal made some observations upon the proper sentence to be passed in respect of cases of theft and fraud committed by persons "of hitherto impeccable character in a position of trust". The court had in mind the type of case where "an accountant, solicitor, bank employee or postman has used that trusted and privileged position to defraud his partners, or clients, or employers or the general public of sizeable sums of money". The court observed that "in general a term of an immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small". The court then gave certain guide-lines using the sum of money involved as "a useful guide". The court then further observed that it would not usually be appropriate in case of a serious breach of trust to suspend the sentence.

13. This case, having regard to the circumstances under which it was committed, the small amount of money which the manufacturer stood to lose, and the fact that it was not premeditated was not within the serious breach of trust category. I think that the circumstances were so exceptional that there was no need to pass an immediate custodial sentence in order to reflect public disapproval. I think that, in this case, a suspended sentence is sufficient for that purpose.

14. I allow the appeal to the extent that the sentence will be suspended for 12 months.