YUEN KWOK-LEUNG v. R.

IN THE COURT OF APPEAL

1994, No. 77
(Criminal)

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J U D G M E N T

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Nazareth, J.A. (giving the judgment of the Court):

1. On 26th January 1994, the appellant pleaded guilty before His Honour Judge Jackson in the District Court to theft of $759,995 in cash from the East Asia Bank. He was convicted and sentenced to imprisonment for three years and six months.

2. The facts, which may conveniently be taken from the agreed statement of facts, are quite simple. The appellant was employed by the North Point branch of the East Asia Bank as a cashier. On 20th September 1993 the branch manager noticed that he had not returned from his lunch break. The manager then made a check which revealed that approximately $760,000 was missing. The precise amount was later determined to be that in the charge to which he pleaded guilty. A report was made to the police. Later that same day the appellant voluntarily surrendered to the police at North Point. $37,000 was found on his person when he was searched. In a cautioned statement he made to the police he admitted that he had taken the money from the Bank to pay off his debts to various finance companies and banks. He had deposited a sum of $200,000 in his own bank account. He used $161,773 to pay off finance companies and banks, and the remaining amount, perhaps apart from the $37,000, was accepted as having been lost in gambling in Macau.

3. The appellant voluntarily withdrew $200,000 from his bank account and returned it to the East Asia Bank. The net loss to the Bank was therefore slightly more than $500,000.

4. The judge accepted that the appellant was of previous good character. He had joined the Bank some 16 years before, straight from school and had been promoted to the position of teller in 1982. Clearly the Bank had trusted him. In his reasons for sentence, the judge then went on to say this:

"I have not the slightest doubt that, having done what he did, the defendant was soon full of remorse - he must have realised soon after the offence was committed that he could not escape its consequences. As I say, he gave himself up to the police and he has pleaded guilty before me today. Unfortunately for him the fact of a clear record carries little weight in sentencing persons such as bank tellers who behave as this defendant behaved; such persons in a position of trust rarely have previous convictions for dishonesty or they would not hold such a position in the first place.

That said, and accepting that this offence was not carried out over a period of time, that it could be said to have been an impulsive offence not long premeditated and one which was regretted shortly after its commission; that his career and reputation are now in tatters, and he has lost his pension rights; and given his plea of guilt for which I discount his sentence by 6 months - it is my view that the appropriate sentence is one of 3 years and 6 months and I so sentence him."

5. Mr Macrae, who appears before us on behalf of the applicant, submits after due consideration that the starting point is on the high side, and that where the starting point is on the high side, the court should have particular regard to the possibility that a discount on the low side is likely to produce a sentence that is manifestly excessive. He submits that here the discount of six months on a starting point of four years is very low, representing a percentage of only 12½ against the more usual 25%. In truth the discount is on the low side; we should probably have allowed a year. But, we cannot say that the discount is wrong in principle, or that it would justify intervention by this Court.

6. Proceeding to the other limb of his submission, that the starting point is on the high side and that the result is manifestly excessive, Mr Macrae has not been able to relate that to any tariff or general pattern or level of sentence. We have been informed by Mr Bruce, who appears for the Crown, that the range of sentences thrown up by his researches is rather a large one that spreads from two years to seven years; that the range of circumstance taken into consideration in those sentences is fully matched in its diversity so that no assistance can be gained from those sentences or their facts. Mr Macrae recognises that, but nonetheless invites the Court to have regard to the feeling it may have that the sentence is high or excessive.

7. Turning to the circumstances of the offence, the judge had had regard to all the matters mentioned. This was a serious offence by a bank cashier entrusted with money who broke that trust. We cannot see anything in the circumstances which would lead us to a conclusion that a less than serious view should be taken of it Nor do we accept that the judge in allowing a low discount erred in principle. As we have indicated, we are also unable to come to the conclusion that the sentence was excessive or wrong in principle. In those circumstances, although the sentence may be somewhat on the high side, there are simply no grounds upon which we could properly interfere with the sentence. We therefore refuse leave to appeal.