HKSAR v. LEE CHUN WAH, SAMMY

CACC 32/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 32 OF 1999

(ON APPEAL FROM DCCC NO.1253 OF 1998)

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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. On 12 January 1999 the applicant, Lee Chun-wah, Sammy, was convicted by His Honour Judge Whaley in the District Court on his own plea of guilty on two charges, one under s.74 of the Crimes Ordinance (Cap. 200), and the other under s.9 of the Theft Ordinance (Cap. 210). The particulars of the first were that on 3 January 1998 he used a false instrument which he knew to be false, namely, a provisional sale and purchase agreement with the intention of inducing the accounts department of the firm for which he worked to accept it as genuine and act upon it as such. The particulars of the second were of theft arising out of the same facts in that on the same day he stole a chose in action of the value of $240,000 being a debt owed by a bank to his firm.

2. The judge sentenced him to a term of two years imprisonment for each of the offences to run concurrently. The applicant now seeks leave to appeal against those sentences.

3. The facts can conveniently be taken from the judge's reasons for sentence. The applicant was at the material time a clerk working for a firm of solicitors. His duties were to deal with the administrative work associated with property transactions. They included the collection and delivery of cheques. He was working in that capacity when he forged a provisional sale and purchase agreement which purported to show that one Lee Lai-king had purchased a flat from a certain Lai Kam-man towards the end of last year. In fact, Lee Lai-king had purchased another flat in the same complex as that to which the forged agreement purported to relate through the firm of solicitors for whom the applicant worked, and which involved Lee Lai-king paying the purchase price by instalments through the solicitors.

4. Lee had in fact made a payment by cheque for $274,000 being one of his purchase instalments. The applicant falsely indicated as part of the fraudulent transaction which he had created that this was a deposit paid by Lee for the flat in the bogus transaction created by the applicant. Purporting to act in pursuance of this bogus sale, the applicant filled in a payment voucher which requested the accounts staff of his firm to issue a cheque to the purported vendor, Lai Kam-man, in the sum of $240,000. Acting on the representations made by the applicant, the accounts staff duly issued such a cheque drawn on the bank account of the firm of solicitors. The cheque was duly made out to Lai Kam-man and the file which contained the details of this fraudulent transaction was passed back to the applicant for his processing of it.

5. Lai was in fact a friend of the applicant. He had opened the account in question at the suggestion of the applicant, and on the applicant's instructions, he subsequently withdrew the bulk of the money which had been credited to the account and gave it to the applicant.

6. On 8 January, the applicant failed to turn up for work. He could not be found and investigations revealed the offences with which he was charged. He surrendered to the police on 18 February this year and under caution, he admitted the offences in question.

7. In his notice of application for leave to appeal, the applicant listed the following grounds. He says that the sentence was too harsh since he had never committed any offences in the past; he gave himself up to the authorities and pleaded guilty; he lost his job with a stable income; and he lost his provident fund benefit of about $70,000 because of this case.

8. Before us today he complains that his lawyer gave reasons that were a little different from the real reasons. We pause to say that having heard what he has said today and studied the record of proceedings that we can see little difference in the two versions, i.e. his lawyer's and his own, although he has elaborated a little what is stated in the record before us.

9. In sentencing him, the judge first of all referred to the matters urged on his behalf by his legal representative. These were that he was 29 years of age and had a clear record. He mentioned then the matters in mitigation pointing out that his was a sad case. He was one of the more successful, apparently in business terms anyway, of three brothers. He had invested quite successfully up to 1997 and of the proceeds helped to support his family. Then in the crash of 1997, he lost everything. His family, who had placed a lot of trust in him, scraped together more money in the hope that he would be able to recuperate the losses, but he lost that as well. He then committed these offences in order to obtain the $240,000 from his firm which he hoped to invest successfully so as to recover all his losses, and be able to repay the firm before the offence was discovered. Instead, his further investments were also disastrous and he lost that money as well.

10. We pause here to mention that the foregoing brief account has been elaborated in this way. He says he lost about $700,000 to begin with, representing his savings and the proceeds of previous investments. He then took out a loan. He lost all of that. He also borrowed $100,000 from an uncle who needed the money to complete a Home Purchase Scheme payment. That was why he committed the offence. He hoped to gain by investments repay the uncle, replace the amount to the office and provide for his family. He adds that he worked for his company for seven years and he has now lost his job with good prospects and a secure future. He let the company down. He stresses that he surrendered to the police and that he has been fully cooperative, that he has saved a lot of time in investigations and that he has not tried to run away. He also mentions that his parents have had to delay their retirement and continue working, using their savings and having to sell their premises so that he could get a lawyer. He also says that he could not agree to their replacing the amount of $240,000 because he wished himself to shoulder the burden and so there has been no restitution and he has had to defend himself. He asks the court to reduce his sentence.

11. What little of that additional material that was not known to the judge was simply items of detail. He had obviously understood that position and even mentioned that the applicant came from a good, supportive family.

12. Having recounted all of that, the judge also very properly recognised the offences as very serious, compounded as they were with the grave breach of trust. We observe also that the offences were carefully planned and executed. Documents were forged. An account was opened. The judge rightly took a serious view of the offences. Neither in the starting point of three years that he adopted nor in the final total sentence of two years imposed for each of the offences can the sentences be said to be manifestly excessive or the judge wrong in principle. Nor are we able to see any other justification for interfering with the sentences. They were fully deserved and there is nothing in any of the reasons put forward by the applicant which would warrant interference with them. We accordingly dismiss the application.

13. The judge was entirely correct in the sentences that he imposed. The application is so devoid of merit that exercising the powers we have under s.83W of the Criminal Procedure Ordinance (Cap. 221), we think it appropriate to disallow two months from the period of time the applicant has spent in custody from being reckoned in his sentence. The result is that he will serve two months extra.