R. v. SHAM TAK LEUNG, FRANKIE

IN THE COURT OF APPEAL

1994, No. 98
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. The applicant pleaded guilty to a charge of conspiracy to defraud and was sentenced to imprisonment for five years and four months.

2. He seeks leave to appeal against conviction out of time and also to appeal against sentence.

3. His application to appeal against conviction out of time has been refused. In our view, the reasons which he advanced for the delay are not sufficient for us to grant the extension he sought.

4. The facts of the case were neatly summarised in the judge's Reasons for Sentence. Between 1 January 1989 and 20 July 1991 the applicant conspired with one Vincent Lam to defraud Prime Computer (HK) Ltd by dishonestly drawing certain cheques on the company's bank account made payable to themselves or their nominees on their behalf. Secondly, making false entries in business records of that company purporting to show that the cheques were in settlement of business debts of that company and lastly, causing the amounts of the cheques to be debited from the company's bank account and to be paid to themselves or to their nominees on their behalf.

5. The applicant commenced his employment at the Prime Computer (HK) Ltd as the Manager Finance and Administration in January 1984. In 1985, he recruited Vincent Lam as an accountant to assist him. He and Lam together with others, subsequently became the authorised signatories on the company account, who were authorised jointly to sign company cheques up to a value of $500,000.

6. It was this cheque-signing authority which the applicant and Lam dishonestly exploited to their own ends. Between 1 January 1989 and 21 July 1991 they put into effect a scheme to defraud the company by drawing cheques on the company account, made payable to themselves or their nominees acting on their behalf. The cheques were signed jointly by both of them.

7. They also made or caused to be made false entries in the company's business records which purported to show that such cheques had been drawn to settle normal business debts of the company, whereas in fact they caused the cheques to be debited from the company's account and paid to themselves or their nominees acting on their behalf.

8. A total of 39 cheques were thus drawn by them, to a total sum of over $10 million. Of this total the applicant pocketed some $7 million, while Lam got the balance of nearly $4 million.

9. Neither the applicant nor Lam have made any voluntary restitution of any of the stolen money to the company. The company at a subsequent stage sue the applicant and others for the return of the embezzled monies and after protracted civil proceedings, which were opposed by the applicant, the company obtained summary judgment against the applicant in the sum of $6,142,445 on 2 April 1992, of which only some $1.1 million has been recovered. Some $21/2 million have been recovered from Lam. The company therefore remains out of pocket to the extent of over $7 million as a result of the fraudulent activities of the applicant and Lam.

10. In passing sentence, the judge said it was a serious fraud, as indeed it was, and the applicant had abused his position of trust as Finance and Administration Manager.

11. The judge said:

" As such it strikes at the heart of Hong Kong's interests, and the sentence should reflect the community's strong disapproval of it and make it clear to all concerned that such conduct will be heavily punished."

We agree. Adopting a starting point of 6½ years' imprisonment, the learned judge gave a discount for the applicant's plea of guilty, thereby passing the sentence which he did.

12. Nothing that the applicant said to us this morning leads us to the conclusion that the sentence was either wrong in principle or manifestly excessive. The application for leave to appeal against sentence is also refused.