ATTORNEY GENERAL v. LI KA LEUNG

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J U D G M E N T

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Silke, V.-P.:

1. On the 31st of October 1988 the Pespondent, having pleaded guilty to three chares of theft, His Honour Judge Wilson in the District court imposed upon him sentences of 1 year's imprisonment on each of those charges concurrent and suspended each of the sentences for a period of 18 months.

2. The Attorney General by leave asks this Court under the provisions of section 81A of the Criminal Procedural Ordinance do review those sentences which be asserts are wrong in principle or manifestly inadequate.

3. The offences took place on 2nd and 11th of February and on 5th March 1988 respectively and involved sum of $391,507.62

4. The Respondent was employed by a company, Incomefine International Limited, which dealt with margin share dealings on the stock exchange. He was senior marketing manager. He solicited custom from the victim who placed orders first on 31st January 1988 for one million shares in Law's Fashion at a total cost of $553,327.50 the amount actually being put up was $300,000: second, on 2nd Februarys the victim placed an order for 960,000 shares of QPL Holdings, the amount put up there was $123,623.18. On neither occasion was a receipt given. Demands were made and receipts were finally provided first on 6th February for the law's Fashion payment and later on 16th March for the QPL payment.

5. On 19th March the victim gave the Respondent instructions to sell the holdings. He was informed on 21st March that they had been sold resulting in an amount of $855,000. He came to claim his money on 23rd March but no cheque was then issued. He was given a Promissory note and told to return the following day. He did And as a result of enquiries made on that day of the firm, it came to light that instead of buying one million Law's Fashion the Respondent had bought but half a million and further that a the realised proceeds of the sale of the shares had been appropriated by the Respondent. There was also a further sum of $23,336 which was the balance a general account separate from either of the share transactions which the victim had with the firm and which was also appropriated by the Respondent.

6. The Respondent then agreed to return the capital involved which Was $423,600 and to this end he gave the victim an I. O. U. and issued three postdated cheques. There was also a cash payment made at that time to which we will refer in a moment.

7. On 18th April the victim attempted to cash the first of the postdated cheques This attempt was frustrated as the cheque vas dishonoured. Then the first report was made to the police. Investigations showed that on 2nd February the Respondent had through another firm of brokers sold the Law's Fashion shares receiving $263.264 and on 11th Feberuary he had sold the QPL holdings receiving $104,907.

8. Before passing the sentences he did the trial judge called for reports which he considered, as have we. The Respondent is a married man, aged 30, which a 6-year old child. He had been employed by Incomefine from December 1986 first as a marketing manager and then on promotion as senior marketing maager. His salary was $5,500 a month. He had a minor previous conviction in 1982, trading as an unregistered commodity dealer. This was a matter which the trial judge quite properly did not take into consideration He was treated as a man with a clear record

9. The trial judge was informed that the Respondent had obtained employment. There was a mention of an anticipated salary of $25,000 a month but this clearly was not totally correct for he has taken up employment in December 1988 but he is not expected to start to earn any substantial sums of money from that employment for some time to come.

10. There was also referred to by the judge a supposed payment of $150,000 in cash made at the time of the arrangements for repayment which had taken place on the discovery of the defalcation. Of this the trial judge said:

"The prosecution agreed something had been repaid but could not accept this figure [$150,000] in the absence of the victim."

11. There is still an apparent dispute as to the amount that was paid, the Crown stating to us that it was $56,000. The Respondent does not agree.

12. The trial judge took into account that the Respondent had, as he put it, "not vanished", and that he obviously hoped to achieve a "over-up" and replace the missing funds before detection. He also took into consideration the fact that no report was immediately made to the pllice, that the accused had alternative employment waiting him subject to this being free and finally, that partial repayment had been made and that any "immediate custodial sentence would prejudice the prospect of repayment of the balance". He thought this not to be a theft by a servant from an employer but that there was an "element of breach of trust" involved.

13. It has not been seriously suggested today that this undoubted breach of trust-not merely an element of it-merited an immediate custodial centence unless there were exceptional circumstances: The Attorney Ceneral v. Lam Tai Keun A.R. 16 of 1986 (unreported).

14. It has been urged upon us that the plea, the initial failure of the victim to report to the police. and this, as we have indicated, was a factorwhich the trial judge took into consideration, and the restitution constituted exceptional circumstances.

15. Certainly, a discount for a plea of guilty is proper but such a plea is not an exceptional circumstance within the context here nor is the failure to immediately report nor, with respect to the trial judge, is the fact that a custodial sentence would inhilit future repayment.

16. There was an error in principle. On the restitution aspect we accept the Crown's figure of $56,000. As my Lord, Cons, V.P., said in Attorney General v. Ki Bon and another [1988] B.K.L.R. 220 at p.224 where there was a reference to an extremely low figure as having been achieved by a defendant form advantages offered to him:

"It is for a defendant to substantiate the matters on which he wishes to rely in mitigation, not for counsel for the Crown to disprove them. It may be that if counsel for the Crown asserts what is put forward as being true, the court may then more readily to inclined to do the same. But the ultimate reaponsibility remains that of the judge. It is his task to assess in the public interest that is an appropriate sentence. He cannot discharge that duty responsibly unless lie is satisfied for himself that the factors influencing his decision are genuine."

17. Here it was for the Respondent to establish his assertion of repayment of $150,000 and that he has failed to do.

18. In the public interest there should have been an immediate custodial sentences and, given the separate nature of the charges and in particular charge three, those sentences should have been consecutive. It is unlikely that we would have interfered with sentences in the region of 18 months on each of the first and second charges and one year on the third had these charges been considered in isolation. But then the totality principle comes into play and, in our judgment, an overall sentence of 2½ years' imprisonment would have been appropriate.  This could have been achieved ty making the sentences on the first and second charges concurrent and on the third consecutive.

19. We allow this application and, as this is a Review, we substitute for the sentences passed, one year's imprisonment on the first and the second charges concurrent and one year's imprisonment on the third charge consecutive effecting a totality of two years' immediate imprisonment.