HKSAR v. WAN CHIU CHOI

CACC 382/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 382 OF 2007

(ON APPEAL FROM  DCCC 452 OF 2007)

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BETWEEN:

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JUDGMENT

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Hon. Yuen JA (giving the judgment of the Court):

1.  This is an application by the 2^nd Defendant (“the Applicant”) for leave to appeal from a sentence of 21 months imprisonment imposed by Deputy Judge Chainrai in the District Court in respect of a charge of aiding and abetting theft.

Facts

2.  The Applicant was an accounts clerk.  The 1^st Defendant was his colleague.  The 1^st Defendant’s job was to deliver goods (cigarettes) to their employer’s customers and to collect payments which should be paid into the employer’s bank account.  He was not permitted to keep customers’ cash payments.  The Applicant’s job was to check the sales records and the bank pay-in slips, and if any customers paid with post-dated cheques, he was to bank those post-dated cheques when they fell due.

3.  However for a period of 2 years between 2001 and 2003, the 1^st Defendant kept cash paid by the customers in a total sum of $33 million.  This was done with the knowledge and cooperation of the Applicant.  To cover up the deficits, the 1^st Defendant gave post-dated cheques to the Applicant which the latter deposited into the employer’s account when the 1^st Defendant obtained funds from other customers. 

4.  It was only when the company accountant conducted a check of the accounting records in August 2003 that the thefts were discovered.  At that stage there was still more than $1.3 million owing from the 1^st Defendant to the employer.  There was no restitution of this sum.

5.  The 1^st Defendant pleaded guilty to a count of theft.  He also offered to assist the prosecution in the trial of the Applicant and gave a non-prejudicial witness statement for that purpose.  As the judge noted, “it was only thereafter that the [Applicant] indicated that he would plead guilty”.

6.  However it would appear that the judge accepted that the Applicant received no compensation for aiding and abetting the 1^st Defendant.

Sentence

7.  After a plea in mitigation by counsel, the judge sentenced the Applicant to a term of imprisonment of 21 months.

Appeal

8.  Mr Acton-Bond who appears with Mr Mak Kin Ming for the Applicant on appeal, has submitted that the sentence was manifestly excessive and that the judge should have imposed a suspended sentence. 

9.  He argued first that the judge had failed to consider the background of the case, in particular that although the charge referred to theft of $33 million, in fact the actual loss was $1.3 million. 

10.  Dealing with this point first, it is clear that the judge was well aware of the amount of loss.  In her Reasons for Sentence, she said at para. 10: “although the amount stolen, as set out in the particulars of the charge was $33,192,120.05, over the period from 2001 until 9 August 2003, of the 602 personal post-dated cheques that D1 used to cover the amounts he had stolen during this period, only 26 cheques for a total of $1,357, 100 was not met as the 1^st Defendant had no money to cover them.  Therefore the net loss to the company was the sum of $1,357,100”. 

11.  Further the judge took as a starting point the period of 3-4 years imprisonment which is for the first band of thefts of sums of $1- 3 million (R v Clark [1998] 2 Cr App R 137, applied in Hong Kong in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776).

12.  Secondly it was submitted on the Applicant’s behalf that the judge had failed to consider that he had acted purely out of sympathy for the 1^st Defendant and his family, that he (the Applicant) had suffered a stroke during detention, and that his former employer and the Probation Officer had made favourable comments about him.  

13.  It is clear that the judge had taken these matters into consideration as she had recounted them in her Reasons for Sentence (para. 13) before giving the Applicant a 3-month discount “to reflect the mitigation” before her (para.19).

14.  Thirdly it was submitted on the Applicant’s behalf that the delay between the discovery of the offence and the matter being brought to court should lead to the suspension of the sentence.  The case of Secretary for Justice v Chan Kit Bing [2001] 1 HKLRD 844 was cited in support.

15.  In Chan Kit Bing, the defendant was re-arrested 5 years after her initial arrest.  The trial judge sentenced her to a term of imprisonment of 3 years suspended for 3 years.  This was contrary to s.109B of the Criminal Procedure Ordinance.  The Secretary for Justice applied for a review of sentence.  This court (Stuart-Moore V-P, Stock JA and Lugar-Mawson J) held that a sentence of immediate imprisonment was appropriate in the normal course of events.  However no good reason for the 5-year delay had been advanced (p.849).  It was in those exceptional circumstances that a suspended sentence was imposed on the application for review. 

16.  We have considered the flowchart of the present proceedings submitted with Mr Acton-Bond’s supplementary submissions.  There was a gap of 3 years between the first time the Applicant was arrested and his re-arrest.  A substantial part of the delay was caused by time taken by the banks and the employer to provide banking and other accounting records.  In the present case, the judge had taken into account the delay when she said (para. 14):

“This matter has been hanging over their heads since 2003.  Although they had been arrested in 2003, the charges were withdrawn.  They were only re-arrested earlier this year.  The prosecution has provided the court with a flowchart to explain the long delay. Much of the delay was due to the lengthy investigations with the banks and accounts staff of [the employer].  I have borne the delay in mind when determining sentence”.

The judge then discounted the sentence by 6 months to reflect the delay in bringing the matter to court.  We see no reason to interfere with the sentencing judge’s exercise of discretion in this respect.

17.  Fourthly it was submitted on the Applicant’s behalf that the judge had failed to consider that the Applicant had not been motivated by greed.  We were referred to the case of HKSAR v Wong Yun Chuen HCMA 1101/98 where Deputy Judge Jackson (as he then was) suspended the sentence of a defendant (a co-ordinator of a social service centre) who had submitted false applications for subventions for programmes which had not taken place.  The defendant there had not pocketed the funds but had used them for other programmes for which funds were not otherwise readily available.

18.  In the present case, the Applicant was also not motivated by self-enrichment, but this is a very different situation from that in Wong Yun Chuen.  In the present case, the Applicant was not motivated by any altruistic reasons.  He was helping his friend and both were committing a breach of trust reposed by their employer.  The employer was not enriched in any respect and in fact suffered a loss of $1.3 million which has not been repaid.  We do not see any exceptional circumstances to warrant a suspended sentence.

19.  The last submission advanced on behalf of the Applicant has however caused us some concern.  It is that there is an unjust disparity between the sentences imposed on the 1^st Defendant and the Applicant.  The 1^st Defendant was also sentenced to a term of imprisonment of 21 months.  This was arrived at by taking a starting point of 3½ years, less a discount of 6 months to reflect the delay in bringing the matter to court, and a further discount of 40% to reflect his assistance to the prosecution and other mitigation (set out in para. 12 of the Reasons for Sentence). 

20.  In our view, to give the Applicant the same sentence as the 1^st Defendant failed to reflect the fact that the 1^st Defendant instigated the thefts and had taken the full benefit of them.  Both of these factors are significant in weighing the relative culpability of these defendants.  And even though the 1^st Defendant had offered assistance to the prosecution, the other mitigating factors in his case were not as strong as in the Applicant’s case.

21.  In the circumstances, we consider that to redress the disparity in sentence, a reduction of the Applicant’s sentence by a period of about 4 months would be appropriate.

Order

22.  Accordingly, the application for leave to appeal against sentence is granted, the application is treated as the appeal proper, we would allow the appeal and set aside the sentence imposed by the judge.  As the Applicant has been in custody since May 2007, bearing in mind the usual reduction for good behaviour, we will make an order for his immediate release which would mean that his sentence has been reduced to about 17 months.