HKSAR v. LAI NUNG CHI DONALD

CACC 341/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 341 OF 1999

(ON APPEAL FROM HCCC 438/1998)

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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 was originally charged with 8 counts of theft and 9 counts of using a false instrument. He pleaded guilty to 4 counts of theft and 1 count of using a false instrument. The other charges were ordered to remain on the court file. After entertaining a Newton inquiry and hearing extensive mitigation from Mr. Plowman, S.C., Deputy Judge Jackson (as he then was) sentenced the Applicant to 4 years imprisonment on each of the theft counts and 1 year imprisonment on the false instrument count. He ordered that all the sentences on the theft counts should be served concurrently but that the one year sentence on the remaining count should be served consecutively thus leading to a total sentence of 5 years imprisonment. The Applicant seeks leave to appeal against the sentences imposed.

2. The Applicant who is a citizen of Singapore was employed as an Account Executive by Mansion House which is a Finance House. His principal duties included introducing clients to the firm and then attending to their investment requirements and buying and selling securities for them.

3. The main victim of these offences was a Mr. Chainrai who is also a Singaporean citizen. He met the Applicant socially and became a client. Most of his dealings were transacted through companies controlled by him.

4. According to the agreed facts as originally drafted the total amount lost by Mr. Chainrai and his companies was of the order of $24 million in relation to these charges.

5. At the conclusion of the Newton hearing the Judge accepted that the total loss was approximately half that amount. It was evident from the records and accounts which were produced that Mr. Chainrai had himself withdrawn some moneys from the accounts and accordingly the Judge gave the Applicant the benefit of this. He proceeded upon the basis that the total amount involved was approximately $12 million.

6. It has to be said that the offences involved a considerable measure of sophistication. The Applicant caused forged statements to be made which were presented to Mr. Chainrai so as to conceal the true situation. The original statements were way laid by the Applicant who also used the services of one of his friends. In addition to this he prepared a forged Power of Attorney which purported to authorise him to represent Mr. Chainrai.

7. He also sold shares worth $10 million in Ming Pao Company directly contrary to the instructions he had received from Mr. Chainrai.

8. One of the main points advanced by Mr. Plowman in mitigation before the Judge was the fact the Applicant had felt uneasy as a result of having given poor investment advice to Mr. Chainrai. He had then attempted to make good the losses sustained by himself trading with Mr. Chainrai's moneys in the hope that he would be able to recoup the losses. He did this against the background of a falling market with the virtually inevitable result that further losses were sustained.

9. The main factors which were borne in mind by the Judge in passing sentence were the high degree of trust reposed in the Applicant and the fact that this course of conduct was maintained over a protracted period of time. Of course the Judge also took cognisance of the very large amount of the loss sustained even after taking into account the reduction earlier referred to. The Judge adopted a starting point of 6 years for the theft counts and 18 months for the using a false instrument count and gave the Applicant the usual 1/3 discount for his early guilty pleas.

10. Mr. Plowman who also appeared before us submitted that the sentences which had been imposed were manifestly excessive in the circumstances of the case. He referred to a number of cases in support of this contention. It is however true to state that the amount of assistance which can be obtained by reference to other cases is limited as inevitably the background and facts will differ significantly.

11. It would appear that the Judge adopted the approach in R. v. Barrick (1985) 81 CR. APP. R.78 rather than in R. v. Trevor Clark [1998] 2 CR. APP. R. 137. We do not consider that the starting point adopted by the Judge for the theft counts was too high. As regards the complaint that the Judge passed a consecutive sentence on count 17 it has to be borne in mind that deception which was the result of the use of the false instrument was calculated to postpone these offences coming to light. The Judge was not wrong to order that the sentence for this offence should be served consecutively provided the overall total sentence is in conformity with sentences properly imposed for offences of this nature.

12. For these reasons the Applicant has failed to demonstrate that the total sentence imposed was either manifestly excessive or wrong in principle.

13. The application is dismissed.