R. v. HUNG PING KONG

COURT OF APPEAL

1993, No. 181
(Criminal)

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J U D G M E N T

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Penlington J.A.:

1. This is an application for leave to appeal against sentence passed by Deputy Judge Gould of three years and six months on each charge following the applicant's plea of guilty to ten charges of theft, a further thirty-eight similar charges being taken into consideration. All sentences were to be concurrent.

2. Over a period of some two years from 1987 to 1989, the applicant together with two other employees of Duty Free Shoppers Limited, stole a total of $24 million by means of an elaborate, carefully planned and, until they were detected, highly successful scheme to defraud. As in so many of these cases one cannot understand that the applicant and the others did not realise the utter inevitability of eventual detection. However as the applicant I think so truly says in his own written grounds of appeal, they "had the tiger by the tail and they could not give up". The consequences have been the end of the applicant's career, of his prospect of immigrating to the United States of America where he has a sister, total financial ruin to his family and the inevitable term of imprisonment. The essential ground that he raised before us however is that he has not been treated in a way which was proportionate to his blameworthiness in relation to the first accused who was plainly the originator of this scheme and who obtained considerably more money which he has not fully repaid.

3. At the time of sentence the agreed facts were that the applicant had received $4.95 million and he had repaid $4.4 million. We are now informed by him, and it is accepted by the Crown, that a further $700,000 has been paid since sentence, making a total of some $5.1 million which is more than the agreed facts said he had taken. We have no doubt whatever that the applicant does have a very deep sense of remorse and that every step has been taken to repay this money. It may be of course that civil proceedings would have resulted in the money being obtained anyway. Nevertheless he has done obviously all that he could.

4. The Judge took as a starting point a sentence of 6 years' imprisonment for all accused which cannot in anyway be faulted, and indeed for the first accused was possibly on the low side. However, that starting point seems right for this applicant. His plea of guilty was in the face of very strong evidence but is a factor, as of course is the substantial restitution made. We do not consider that the sentences passed can be faulted in principle. We do however take into account the fact that since the date of that sentence a further $700,000 has been repaid. That we think does enable us to take a merciful step and to allow the application for leave to appeal against sentence. We treat this as the hearing of the appeal and the sentence of three years and six months is reduced to one of three years.