HKSAR v. CHAN KAI CHUNG

CACC12/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 12 OF 2001

(ON APPEAL FROM DCCC 950/2000)

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J U D G M E N T

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Hon Yeung J (giving the judgment of the Court):

1. The Applicant, Chan Kai Chung pleaded guilty before Judge Sweeney in the District Court to 20 charges of theft.

2. In respect of each charge, he was sentenced to 2 years imprisonment. The sentences on the first two charges are to run consecutively. The sentences on the remaining 18 charges are to run concurrently to that of the second charge.

3. The total sentence is one of 4 years' imprisonment.

4. The Applicant now seeks leave to appeal against the sentences.

5. The Applicant worked for the victim, Mr Wong as his accounting clerk.

6. Mr Wong, due to his China Trade business had to spend much of his time in the Mainland and therefore entrusted the Applicant with pre-signed blank cheques to settle business expenses.

7. The Applicant instead used the cheques unlawfully for his own purposes.

8. He used one cheque to settle his tax liability of $96,244. He used 19 other cheques to withdraw cash of between $20,000 to $60,000 for his own use. A total of just over $1 million had been embezzled.

9. The offences were committed over a period of about 4 years.

10. The Applicant has a clear record. He was said to have come from a humble background and was able to make a good career after a lot of hard work. The cause of his downfall was said to be his gambling habit.

11. The offences are of course very serious. The case is also quite a bad one of its type.

12. It is a case of clear and blatant breach of trust involving a significant sum of money. It occurred over a period of about 4 years on 20 separated occasions.

13. Mr Grounds, on behalf of the Applicant suggests that the total sentence of 4 years, in the light of his guilty pleas, means a starting point of 6 years was adopted and it was excessive.

14. He refers to the cases of R v. Trevor Clark [1998] 2 Cr. App. R. 137; Secretary for Justice v. Wong Kay Din (unreported) App. for Rev. No. 7 of 1998 and HKSAR v. Wat Wai Leung (unreported) Cr. App. 276 of 2000 in which sentences, comparatively lower than those imposed in the present case, were passed.

15. According to Clark's case (supra), the appropriate sentence of theft involving breach of trust and an amount of the equivalent of about $1 million, is one of about 3 years' imprisonment. Mr Grounds suggests that the Court should follow Clark as in Wong Kay Din (supra) and Wat Wai Leung (supra).

16. Sentence of course depends on the circumstances of the offender and the offence and must reflect the local social and economic conditions. Sentences in other jurisdiction may provide a useful guide but should not be relied on too heavily.

17. In R. Cheung Hing-biu [1984] HKLR 87, Silke JA in delivering the judgment said at page 93:-

"There has grown up over the years, and in particular since the constitution of the Criminal Division of the Court of Appeal, a corpus of practice and procedure, in conformity with the common law, peculiar to the environment in which we live. The quantum of sentences is an example. English cases have often little relevance as to that and text books such as (Principles on Sentencing by D.A. Thomas) whose principles are distilled from sentences imposed in English cases and from the effect of statutory enactments are often not of great assistance."

18. The above passage was cited with approval by the Court of Appeal in The Queen v. Ying Lai-chau [1991] 1 HKLR 48 although the court recognizes that there might be common factors which are relevant in Hong Kong as they are in England in determining the proper level of sentence. In that case, at page 50, Macdougall, J.A. echoed the factors referred to by Lord Lane in the well-known case of R. v. Barrick (1985) 81 Cr App R 78 at page 83:

"The following are some of the matters to which the Court will no doubt wish to pay regard in determining what the proper level of sentence should be:

(i) the quality and degree of trust reposed in the offender including his rank;

(ii) the period over which the fraud or the thefts have been perpetrated;

(iii) the use to which the money or property dishonestly taken was put;

(iv) the effect upon the victim;

(v) the impact of the offences on the public and public confidence;

(vi) the effect on fellow-employees or partners;

(vii) the effect on the offender himself;

(viii) his own history;

(ix) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometime happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police."

19. We want to emphasise that the amount involved in a case is just one of the factors relevant to sentence. Very often the impact of a smaller amount on a victim may far exceed the impact of a greater amount on another victim. We also take the view that compensation to the victim in most cases is a strong mitigation factor as it will significantly weaken the impact of the offence on the victim.

20. However each case depends on its own facts and the sentencing judge must be allowed to depart from any suggested guidelines for sentences if the particular circumstances of the case justify such a course.

21. In the present case, as the trial judge quite rightly pointed out, the Applicant had spent and lost his employer's money in an effort to get rich quickly. He persisted with his stealing every few months for 4 years and would still be doing it if Mr Wong had not discovered the true nature of the Applicant in whom he had placed so much trust, which trust had been flagrantly breached.

22. On the other hand, the loss of the $1 million does not seem to have had too significant an impact on Mr Wong and there are no other aggravating factors.

23. In Wong Kay-din (supra), a case involving about $3 million, a sentence of 4 1/2 years after trial was considered to be appropriate. The sentence was of course imposed on an application for review.

24. We have considered the background of the case and the background of the Applicant carefully. We have also examined sentences imposed in other cases involving breach of trust.

25. We are persuaded that the sentence of 4 years imprisonment, which means a starting point of 6 years, is excessive. We are of the view that a proper starting point should be 4 1/2 years imprisonment and taking into consideration the guilty pleas of the Applicant, a total sentence of 3 years imprisonment should be imposed.

26. The application is allowed. We treat this application as the appeal. The sentences on the individual charges are to stand. Of the 2 years imprisonment on the 1st charge, only one year is to be served consecutively to the sentences on the other charges. The total sentence is reduced from 4 years to 3 years and the appeal is allowed to such extent.