R. v. YAU KA LING, KAREN

IN THE COURT OF APPEAL

1995, No. 19

(Criminal)

_________________

J U D G M E N T

_________________

Mortimer JA (giving the judgment of the Court): This is an application for leave to appeal against sentence. The applicant, who is a 36 year old mother of two children, pleaded guilty to 59 charges of theft, spread over the period from February 1991 to September 1992 before Deputy Judge Wright in the District Court.

2. On 3 January 1995, she was sentenced to 4 years imprisonment concurrent on each charge.

The facts

3. She was employed as a secretary with General Research Electronics Ltd, which was an import/export company in business in electronic components. It was the subsidiary of a Japanese company which began trading in Hong Kong in 1987. Although described as a secretary she had wide duties, especially when the general manager was away. He frequently was away. The company had an account with the Bank of Tokyo and the general manager Mr Uchikiba was the only authorised signatory. There was the requirement when he was away for accounts to be paid. The system adopted was that he left signed blank cheques with the applicant. Initially she would return to him the blank cheques which had not been used but later she simply kept a stock of blank cheques which she did not return to him even on his return to the Territory.

4. By February 1991 that system has been established. It appears that her husband's business was running into difficulties and she was tempted to make criminal use of those blank cheques. She began to use the cheques to take money from the company's account. From January 1991 until June or July of 1992 she took money from the account and later repaid the same sums into the account, no doubt so that the defalcations would not come to light. It is not clear what the money was used for, save that it was to assist her husband in his financial difficulties.

5. The default was discovered when she was unable to repay the sums taken. The first occasion was in July 1992. According to the schedule she took $1,675,000 in that month and repaid $1,550,000. Later, matters became more serious. In August she took over $3,000,000 and repaid $300,000; a cheque for $2,500,000 was dishonoured. In September 1992, nearly $1,000,000 was taken and only $10,000 repaid; a cheque for $3,800,000 was dishonoured.

6. When discovered, she immediately admitted what she had done. The schedule shows a gradual escalation of the thefts.

The sentence

7. In sentencing, the judge took into account the applicant's personal circumstances. He considered the period over which these offences had taken place and the total sum involved of over $7,000,000. This was mitigated by the fact that the loss to the employer was about $2,000,000. He rightly rejected the suggestion that the repayments of the same amounts as taken made in the early months was a mitigation. He took the correct view that those repayments were made to cover up what had happened rather than an indication of remorse.

8. Having taking into account the facts of the case, the applicant's good character, her personal circumstances, in particular her plea of guilty, the adverse effect upon her health, the temptation of committing relatively easy offences and the extended period over which the offences had been committed, he took 6 years as the starting point.

The application

9. Mr Fenton, who appears on this application, submits that taking all these matters into account, 6 years was manifestly too high as the starting point.

Conclusion

10. We have looked at the whole of these circumstances afresh and have in mind that the circumstances of each case vary considerably. This was a breach of trust in which the applicant pleaded guilty. She has a clear record and her circumstances make any term of imprisonment bear very seriously upon her and her family. The last matter is - as we have said very frequently in the past - not to be greatly weighed in mitigation.

11. However, we are satisfied that 6 years was too high as a starting point and manifestly so. The proper starting point is 5 years imprisonment and for all the mitigating circumstances, in particular the plea of guilty, we reduce that to one of 3 years imprisonment. We are comforted by the fact that such a sentence is consistent with the case cited to us, The Attorney General v Shek Wai Ip (unreported, Application for Review No.8 of 1994).

12. In the circumstances we give leave to appeal against sentence, we treat the hearing as the appeal, we allow the appeal and substitute the sentence of 4 years to one of 3 years.