HKSAR v. CHOW HUNG KEI

CACC419/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 419 OF 1999

(ON APPEAL FROM DCCC 520 OF 1999)

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. On 6th August 1999, the Applicant was sentenced by Deputy Judge Duggan in the District Court to eighteen months' imprisonment for the theft of $925,800, the property of the Hongkong and Shanghai Banking Corporation Limited. This was a general deficiency charge relating to the thefts of money between 19th October 1998 and 19th February 1999, which were committed in breach of trust while the Applicant was an employee of the bank. He had earlier pleaded guilty to the offence and sentence followed an adjournment to obtain a probation report.

2. The Applicant's grounds of appeal relate to his feelings of remorse, the fact that most of the money he stole was ultimately repaid, and the ill health of his mother. Today in court he has emphasised that the ill health of his mother was in fact the major cause of his committing these offences. This, however, does not appear to be the case. The probation report makes no reference to anything of that kind although the Applicant's mother is referred to in the probation report a number of times. In paragraph 7 in particular, the report says that:

"The Accused was filial to Madam Wu (his mother) and escorted her to attend doctors when in need. He also bought presents to Madam Wu on occasions of festivals and birthday."

3. The real truth behind the theft of this very considerable sum of money is that the Applicant, as he told the probation officer:

".... had debts amounting to some $200,000 in early 1995. He attempted to strike a balance by gambling in Macau. Unfortunately, he lost money in Macau. Gambling had added more to his debts.

The Accused was at his financial plight in the middle of 1998. With his income by working as a service assistant at the Bank, he could hardly clear his debts. He was urged by the credit card companies and finance institutions for repayment of the outstanding balance. Subsequently, he stole money from the Bank and committed the present offence. The Accused admittedly had done it out of greed."

Those are the Applicant's own reported words to the probation officer.

4. So far as the mitigation that was put before the court is concerned, the judge was mindful of the relevant features of what had been said and, in particular, the Applicant's ability to repay $753,187 because it had been found on him at the time of his arrest. Indeed, the judge made an order in that sum of restitution to the victim bank.

5. The judge in his Reasons for Sentence said:

"This was a case of a situation snowballing, as your counsel says, to the point where you foolishly considered the only choice was to try and recover the money by gambling. The matter was brought to a head by the closure of the branch and the knowledge that you would be found out. In one final desperate action, you took the $150,000 the day before closure and went to Macau to try and win it back. To an extent you succeeded and you were found with some $750,000 in your possession on your return. You knew you would be caught and indeed you were."

6. With that background, the judge took a starting point of three years and reduced the sentence by no less than 50% as a mark of very considerable mercy in the light of the mitigation which had been advanced. The sentence was a lenient one and there is no merit whatever in this application.

7. Because the application has lacked merit, we shall order that the Applicant shall suffer three months' loss of time, which will have the effect of extending his sentence by three months.