THE QUEEN v. NG CHI WAI

IN TEL SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 16 OF 1986

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BETWEEN

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JUDGMENT

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Penlington, J.:

1. This is an appeal against sentences of 2 years imprisonment passed on charges of theft of a cheque, uttering a forged document and false accounting. All sentences were to be concurrent.

Background

2. This appeal has caused us considerable difficulty. The appellant was employed in a senior position in the Far East Bank at Tsuen Wan. On 23rd July 1985 he stole a cheque from the chequebook of a customer, a Miss LI Wai, which was in the bank's custody, forged her signature and made it out for $3,980,000. On the following day he paid the cheque into his own account with the Hang Seng Bank and that evening he telephoned the Administration Department of the Far East Bank and identified himself. He informed them that there was a substantial late-running foreign exchange transaction and asked that the computer staff remain until the completion of that transaction. He then interfered with the computer records to which he had access so that the computer would show a foreign exchange transaction which required Miss LI Wai's account to be credited with $4 million. That was in fact done but due to the Bank's internal checking system it was discovered the following day and an investigation inevitably led to the arrest of the appellant. All large transactions over a certain sum are verified and this came well within that category, a fact well known to all the banks employees at the appellants level. No attempt was made to cash a cheque on the appellants own account with the Hang Seng Bank though he had asked its staff to have cash ready for a large withdrawal.

3. At first sight this appears to be a case of an employee in a position of trust grossly abusing that position so as to obtain a very large sum of money. The judge in the Court below called for probation and psychiatric reports which showed that the appellant has had a very good career with the bank, has studied extremely hard, saved a substantial sum of money and was about to go to England to pursue his studies. It was also clear that, rightly or wrongly, he considered he was being grossly over-worked and had finally put in his resigtiation. Mr. Alderdice, who appears here in mitigation, says that while the psychiatric report does not say that he is abnormal so as not to to responsible for his actions quite clearly he was under enormous pressure and this attempt was doomed to failure from the beginning. There was not the slightest possibility of its succeeding and the appellant must have known that. This is a case of a young man who had strong feelings of resentment about the way the bank had treated him, and he stupidly tried to get his own back by in some way embarrassing the bank.

4. One factor which was taken into account in the Court below was that the appellant had booked a passage to London and was due to fly out on the 27th July. This was only in fact brought out in mitigation and the judge seems to take this as an indication that the appellant intended to get the money and then leave with it. That possibly was not the case, because in fact the ticket had been booked on the 13th July, quite a long time before and all arrangements had been made for the appellant to go to a university in England.

5. If this had been a genuine attempt to obtain some $4,000,000 from a bank by one of its senior staff a sentence of two years immediate imprisonment would have been very lenient. Only, the most exceptional of such cases do not call for an immediate custodial sentence. However each case of this sort must be treated on its own facts. We have decided, with some hesitation, that this is indeed a wholly exceptional case. The appellant has been incredibly stupid; he has ruined a promising career and has no doubt caused grave distress to his family. He has now had this matter hanging over him for some nine months and he has been in custody for two and a half months. He pleaded guilty and, naturally, has a clear record. We feel that we should give him the benefit of the doubt and assume that this was not a genuine attempt to obtain a very large sum of money by deception and that the sentences should be suspended for a period of two years. This should in no way be treated as a precedent but is a decision based solely on the very unusual circumstances of this particular case.

6. We also however feel that the Crown has been put to considerable expense because of the stupid actions of the appellant and will order him to pay the sum of $5,000 in costs.