HKSAR v. LEE YUK CHING

CACC 194/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 194 OF 1999

(ON APPEAL FROM DCCC 27 OF 1999)

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J U D G M E N T

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Nazareth V-P (giving the judgment of the Court) :

1. The applicant, Lee Yuk-ching, was convicted by Deputy Judge Sinclair of 12 charges of theft contrary to s.9 of the Theft Ordinance (Cap. 210) on 19 March 1999. A week later, she was sentenced to terms of imprisonment ranging from 2 years to 3 1/2 years in respect of each of those counts, all to run concurrently, which meant a total of 3 1/2 years. She now seeks to leave to appeal against conviction and sentence.

2. In her written grounds of appeal, she first of all with respect to her convictions says that the evidence of the victims was open to some doubts. There were substantive contradictions. The so-called witnesses were only the boss of her company and the staff of other travel agencies. Her customers were not called to say if money had really been passed on to her. The evidence and timing given by the police also had discrepancies. Also, that she had a letter showing a credit amount with the company under the signature of her boss and company seal.

3. As to her reasons for reduction of sentence, we will come to these later.

4. Before us today, she has amplified her main ground which was also contained in those we have mentioned. What she says is that, no witnesses were called to prove that money had been given to her so that this was not proved. The company did not receive the money, nor had she pocketed the money. The company had summoned 10 persons only, all of whom were travel agents appointed by the company. These were shareholders of her employer. She also says that these travel agents were only able to prove that her employer owed them $1m. She repeated that it was not proved that she had received the money. Finally, she added that the police had received her record book, listing all her customers so that they could have been called.

5. The facts of this case are relatively straightforward. Her employer, Genway Travel Limited ("the company"), was a travel agency. Its main business was to arrange for issue of flight tickets and hotel accommodation for customers. Her duties as an employee were to arrange for bookings of flight tickets and hotel rooms with other travel agencies. When an order was received from a customer, the applicant would contact a representative of another agency concerned. After delivery of the ticket or confirmation of the hotel room, the company normally had to pay within a short period. The applicant would then receive payment from her customer and return the money to her company.

6. Sometime in March 1998, one of the directors of the company found out that there were 12 transactions handled by the applicant during the period October 1997 to March 1998 which revealed that the customers' payments had not been received by the company. Six travel agencies confirmed that flight tickets were issued or hotel rooms had been arranged.

7. The applicant was confronted by the director who gave evidence as PW1. The applicant admitted that she had received money from customers but failed to pass it on to the company. She asked for a chance and promised to reimburse the company. But in the event she did not do so.

8. The main point the applicant relies upon before us is the lack of direct evidence by the agents who had paid for flight tickets or hotel accommodation and in respect of which her employers complained they had not received the money. However, what the court relied upon were her admissions in her interviews. That matter was carefully addressed by the judge. He was entitled to accept the evidence of the admissions and he did so. The fact that other evidence could also have been procured is neither here nor there. He accepted the evidence and on that basis convicted the applicant. We can find no fault with that conclusion. We refuse the application for leave to appeal against conviction.

9. Turing to the application for leave to appeal against sentence, what the applicant said in her written notice of appeal was this:

"I also hope to return to the victim the credit amount, even though there were victims, I also know they very much would like to recover the money for the purpose of compensating other companies. I mentioned that to the three victims before, but because the case was to be listed, so it was inconvenient to have further contact."

She has repeated the thrust of that before us today, adding that she had saved some money successfully and had told her lawyer that whether convicted or not, she would be willing to repay bad debts of the company. She also complains that the judge did not obtain background reports. She is a single mother with a daughter of the age of 6 years. She repeated her willingness to repay.

10. As we have mentioned, the judge deferred sentencing her by a week following her conviction. He then in his reasons gave very careful consideration to the matter of sentence. He was not able to take a very lenient view of the matter. He held that deterrent sentences were justified; in our view he was right. The applicant was an employee who in breach of duties and the trust imposed in her, misappropriated these sums that were entrusted to her. He took a starting point of 3 1/2 years. That was a high starting point but in no way was it excessive or wrong in principle. There are no grounds for us to interfere with it. The judge then pointed out that there was no real mitigation and in fact, no mitigation worthy of that description has been drawn to our attention. The judge was aware of the applicant's personal circumstances and mentioned that he felt sorry for her daughter. In those circumstances we do not find any justification for intervening in the matter of sentence. We accordingly also refuse leave to appeal against sentence.