FUNG SHUI KUEN v. R.

IN THE COURT OF APPEAL

1994, No. 437
(Criminal)

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J U D G M E N T

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Wong J. (giving the judgment of the Court):

1. Fung Shui Kuen pleaded guilty before His Honour Judge Kilgour in the District Court to a total of 13 charges of theft (9 charges), forgery (3 charges) and possession of equipment for making false instruments. The judge sentenced her to concurrent sentences of 18 months against which she now seeks leave to appeal.

2. The applicant, who was a woman of 46 year of age, took up employment as an accounts clerk with a transport company, which was a family owned business, in February 1993. Between May and August of the same year, she began diverting company cheques into a business account which she had set up in the same name of her employer.

3. The fraud came to light in October when more than $1.2 million had been channelled into her bank account. She was arrested and assisted in the recovery of nearly $1 million from her stockbrokers, leaving approximately $144,000 unaccounted for.

4. The first ground of appeal complains that the judge took a wholly insufficient view of the health condition of the applicant and the fact that she has suffered a relapse of her earlier cancer and currently suffers from a pre cancerous condition which could turn malignant at any time and which requires attendance at a hospital under special care, which treatment is not available in the hospital wing of a prison. The other grounds of appeal were to the effect that the judge gave insufficient credit for the applicant's plea of guilty, her family circumstances, her previous clear record and there had been a restitution of nearly 90 per cent of the stolen money. It was further submitted that in all the circumstances of the case, the judge was wrong not to have considered and imposed a suspended or at least a partially suspended sentence due to the strong and exceptional humanitarian factors.

5. We are unable to agree with these submissions. All the mitigating factors were before the judge and carefully considered by him. The judge took a starting point of 3 years for these offences and a sentence of this length would have been fully justified had it not been for the strong mitigating factors that had been put before us and before the judge. It was on the basis of this, the judge reduced the sentence by half to 18 months. The question as to whether there would be proper and sufficient medical facilities for the applicant in case of need at first caused us some concern. We have now been informed that such facilities would be available to her when and if necessary. The latest medical report of 23rd September 1994 further indicates that the present condition of the applicant is satisfactory and stable. This was a premeditated and deliberate fraud as the judge has found and a glaring abuse of trust. What the applicant did can only be described as utterly dishonest and disgraceful conduct.

6. Against all these, we take into account that the applicant is suffering from very serious illness, which does merit additional consideration and solely on that basis and purely as an act of mercy, without attributing any criticism to the judge, we would reduce the sentence of imprisonment of 18 months to one of 12 months. We are satisfied that this is not a case to suspend the sentence.

7. The application for leave to appeal against sentence is therefore granted and the appeal is allowed to the extent indicated.