R. v. CHAN YIU NANG

IN THE COURT OF APPEAL

1996, No. 734
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court):

1. On 9 September 1996 the applicant pleaded guilty to 9 counts of theft before Her Honour Judge Beeson in the District Court and was sentenced to 2 years and 8 months on each count concurrent. He seeks leave to appeal against the sentence.

The facts

2. The applicant was employed as a sales and marketing director for a jewelry company. The stock was kept in three safes in a strong room. That strong room was shared by a sister company of his employer. The lock of one of the safes was out of order. Employees of the sister company as well as his employer's had keys for the strong room and also had access to it. No record was kept as to who entered the strong room.

3. The applicant got into financial difficulties. Taking advantage of the lack system for the control of stock that between November 1995 and June 1996 he took 11 finger rings, worth $211,000. Ht pawned them for a total of $51,000. The last offence was persistent because at the end of July, stock was taken and 9 rings were found missing. That was reported to the applicant who reported the matter to the police. However, he took two more rings, the last offence. That was revealed at the August stocktaking and this whole matter came to light when pawn tickets were found in the applicant's home. As a result of that all the rings were recovered.

At trial

4. The applicant pleaded guilty. He is a man of previous good character, 34 years of age who was educated partly in the United States and is a gemologist. His problems began after he returned to Hong Kong to work and founded his own jewelry firm with a friend which ran into difficulties. It is fair to say that those difficulties were not all of his own making but a sum in the region of $400,000 to $500,000 was owing. He made some attempts to repay that money and, indeed, when he was on bail, he continued those attempts. But the financial pressures upon him, which were apparently not reduced by his girlfriend, made the task quite beyond his reach.

5. Before this Court he advances a number of grounds. The first is that in another case of jewelry theft of $300,000. He notes a sentence of 2 years was passed where the accused had been given the chance of repaying the money which is always the mitigation. But the details of another case are unlikely to assist us greatly. He pointed out rightly that $51,000 was the sum by which he benefited in this case. He wishes to repay the money but has not had the chance to do so. Looking at the whole picture, this is quite unrealistic having regard to the financial difficulties which he and his living-in girlfriend face.

6. He advances certain other matters but it is clear that those matters were taken into account by the judge. He complains, for example, that he pleaded guilty and was entitled, he suggests, to a one-third discount. He was given a one-third discount and he submits that in those circumstances he got no discount for his clear record. But these matters are not worked by arithmetic. It is clear from the terms in which the judge sentenced the applicant that she took into account the history of the matter, his good character, his plea of guilty and all those matters that were raised and are raised now in mitigation. But on the other side of the coin she also had to take into account as the applicant realistically recognises the position which he was in; the breach of trust; the period over which the offences were committed and the amount which was involved, although not lost.

7. In these circumstances the sentence of 4 years which the judge took as the starting point was without doubt a heavy sentence. The sentence which was passed, of 2 years and 8 months, was in itself in all the circumstances also a heavy sentence, but it was a sentence which was well within the judge's proper discretion.

8. In these circumstances we are obliged to refuse leave to appeal.