THE QUEEN v. ANDREWS MARIASUSAI

IN THE COURT OF APPEAL

1987, No. 202
(Criminal)

THE QUEEN

and

ANDREWS MARIASUSAI

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Date-of hearing : 26th August 1987

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DECISION

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Liu, J.:

1. The applicant faced 20 charges before the District Judge. He pleaded guilty to seven and the crown offered no evidence as to the remainder. As for the seven charges to which he pleaded guilty, the offences ranged over a period of two years from August 1983 to August 1985. The amount involved was slightly over $35,000.

2. He was 31 at the time when he appeared before the District Judge. He has a clear record, was recently married with a wife of 24 and a baby of 18 months. For a man of previously good character, as in the case of the applicant, any term of imprisonment is likely to be a dreadful experience. He is now receiving a monthly subsidy of $700 from his father. Since May 1986, he has had no income principally because the bank declined to give him a release letter. He has therefore endured much hardship.

3. He came to Hong Kong in 1974, and he was a clerk with an Indian firm until 1978. In January 1978, he joined the bank. He rose to the position of a bank officer in charge of various accounts of a branch, and in that capacity, he committed these offences.

4. He returned to Hong Kong after a short leave on the 17th May 1986. His passport was impounded, we are told, by a bank officer and was not returned until the 1st of July. He visited Shenzhen on the 9th and on his return on the 10th, he was arrested at the border. The District Judge gave the impression in his Reasons for Sentence that the applicant was arrested when he was about to leave Hong Kong.

5. Counsel for the applicant emphasized his personal circumstances. He had been receiving a very low salary from the bank in terms of $4,000 per month. His responsibility was not insubstantial and. he was required to entertain overseas visitors and customers of the bank at his own expense. He was not the originator, as it were, of this idea of helping himself to certain funds in the bank accounts. He derived this particular system from newspapers in his native country. There again, in the Reasons for Sentence of the District Judge, seems to suffer from a degree of misconception.

6. The amount involved came to slightly over $35,000. What was overlooked at the time when mitigation was advanced for the benefit of the District Judge is the forfeiture of the applicant's superannuation pension scheme in the sum of $9,000. That was confiscated by the bank. Hence, the District Judge was not fully assisted.

7. We have been told by counsel for the applicant that the charges for which the Crown offered no evidence are, in effect, mirrored charges of the seven to which he has pleaded guilty.

8. In substance, the amount of the loss to the Bank on the offences to which the applicant pleaded guilty is some $26,000.

9. The District Judge sentenced the applicant to a term of 18 months having taken into account his plea of guilty. He intimated that he would have imposed a sentence of two years on each count to run concurrently on conviction after trial.

10. It was not challenged that fraud committed by a person in a position of trust merits an immediate custodial sentence, but it was contended that the sentences for breaches of trust involving merely $26,000 are manifestly excessive.

11. For a man like the applicant, any length of a custodial sentence is likely to be equally deleterious and unpleasant. There is little fear that he will ever again offend in a like capacity or, for that matter, obtain similar employment in Hong Kong.

12. The amount is small, and in the case of John Barrick[1] , Lord Lane L.C.J. said of a case of fraudulent breach of trust :-

“The sum involved was obviously not the only factor to be considered, but it may in many cases provide a useful guide. Where the amounts involved cannot be described as small but are less than 10,000 or thereabouts, terms of imprisonment ranging from the very short up to about eighteen months are appropriate.”

13. It is to be noted that sentences in this Territory are generally on a higher scale in tariff, but taking into consideration the very small amount in this case, some $26,000, and the personal circumstances as submitted to us this morning by counsel for the applicant, there is, in our view, sufficient justification for the sentences imposed by the District Judge to be reduced from 18 months to 12. We think that in this case the gravity of the offence is sufficiently marked by a term of 12 months. We treat the application for leave to appeal against sentence as the appeal proper. We allow the appeal to that extent and substitute a sentence of 12 months for 18.