ATTORNEY GENERAL v. LAM TAI-KUEN

IN THE COURT OF APPEAL

BETWEEN

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JUDGMENT

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Kempster, J.A.:

1. This is the judgment of the court upon an application brought by the Attorney General pursuant to section 81A of the Criminal Procedure Ordinance for the review of sentences passed by Deputy Judge Ong in the Victoria District Court on 10th July 1986 following pleas of guilty by the respondent, Lam Tai-kuen, to four offences. His pleas were entered on the fourth day of a trial upon an indictment containing 13 charges, some of them alternative, and related to one charge of theft, two of forgery and one of false accounting. Upon these pleas the Crown elected to offer no evidence upon the remaining charges.

2. The respondent had been employed as manager in a stockbroking business and had stolen a bank-draft, forged a bank pay-in slip and a cheque indorsement and falsified an account book. The total sum of money involved amounted to nearly $480,000. He had held his job, which was a responsible one, for 14 years and been paid a pittance for his services. The office in which he worked was subject to minimal, if any, supervision and control. He had become frustrated, resorted to gambling, incurred the inevitable debts and, in a typical attempt to extricate himself from such a predicament, turned to crime. The Deputy Judge sentenced him to two years imprisonment on each count, concurrent, and suspended such sentences for a period of three years. In addition he ordered the respondent to pay $10,000 towards the costs of the prosecution.

3. It is the contention of the Attorney General that the suspension of the sentences was wrong in principle having regard to two considerations. The first is that the respondent had been guilty of breach of trust as between employer and employee and the second that the sentences were identical with those passed upon his subordinate, Miss Lee, guilty of similar offences, and did not reflect his greater relative culpability. She was of previous good character, had been subject to the respondent's influence, and had agreed to give evidence for the Crown upon his prosecution. It appears that the Deputy Judge thought to mark this distinction by passing a sentence of two and a half years imprisonment on each of the counts to which the respondent had pleaded guilty, to run concurrently, but, on being apprised of the fact that he could not then lawfully suspend the sentences, reduced them to two years to enable this to be done.

4. It is common ground before us that in cases of this nature an immediate custodial sentence is called-for in the absence of exceptional circumstances such as, we mention by way of example, a preponderant intention to embarrass rather than to defraud an employer or those which pertained to Miss Lee. No exceptional circumstances appear to us to arise in the instant case. As Lord Lane C.J. pointed out in R v Barrick ⁽¹⁾ :

The type of case with which we are concerned is where a person in a position of trust, for example, an accountant, solicitor, bank employee or postman, has used that privileged and trusted position to defraud his partners or clients or employers or the general public of sizeable sums of money. He will usually, as in this case, be a person of hitherto impeccable character. It is practically certain, again as in this case, that he will never offend again and, in the nature of things, he will never again in his life be able to secure similar employment with all that that means in the shape of disgrace for himself and hardship for himself and also his family."

The offences committed by the respondent and Miss Lee were confined to a period of some three months. He was unemployed from July 1984 until, in October 1985, he obtained considerably more lucrative employment as a taxi driver. He has expressed a desire to make restitution but, understandably, has not been and is unlikely to be in any position so to do.

5. Taking all these matters into account, as the Deputy Judge did, we think his initial figure of two and a half years overall for the four offences was appropriate. Had he passed such a sentence no question of suspension would, of course, have arisen. It appears, however, that he so misread R v Ng Chi-wai ⁽²⁾ as to believe that approved sentencing policy in this class of case required as the norm a suspended rather than an immediate custodial sentence of imprisonment. As we have explained the reverse approach is called-for. Accordingly we accept the Attorney General's submission that the Deputy Judge erred in principle when he suspended the respondent's sentences. In the event and having regard to the extended period of anxiety to which he has been subjected we do not alter the sentences of two years imprisonment, concurrent, but lift the suspension so that they will take effect forthwith.

6. Before parting with this application we would observe that the papers required to be put before the Court of Appeal by reason of the terms of section 81A(2A) of the Ordinance are extremely limited. In almost every case a copy of the indictment and of the agreed statement of facts will furnish the absolute minimum of additional information required. We would suggest that these, together with any other matter thought relevant, might well be incorporated in the document lodged pursuant to section 81A(2)(a).

(1)    (1985) Cr. App. R(Sentences) 142 at p.145

(2)    Crim. App. No. 16 of 1986 (unreported)