THE QUEEN v. NG YUK BUN, KELVIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 261 OF 1996

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J U D G M E N T

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1. The appellant was convicted and sentenced on 9th February 1996 of one offence of conspiracy to defraud, contrary to Common Law. The facts were that the appellant and another conspired to defraud the Chinese University of Hong Kong of sums of money as reimbursement for the payment of rent by the appellant and the other when such reimbursement was not their entitlement. The facts were that, to that end, they created tenancy documents for a period of 25 months, from the creation of those documents, together with false rent receipts indicating a monthly payment of the rent.

2. The first ground of appeal argued by Mr Plowman is that the learned Magistrate wrongly categorised the offence as a case involving a breach of trust and sentenced the appellant upon that basis when in fact the offence should not have been so categorised. I accept that the learned Magistrate did approach the offence on that basis.

3. The facts in this case are not those usually found in cases relating to breaches of trust. This is not the situation where the appellant was given authority over sums of money or valuable items by his employer and used that authority to divert that money or those items to his own benefit or the benefit of others. It is however a case where by virtue of his position of employment, the appellant was able by dishonesty and deceit to cause his employer to pay to him money to which he was not entitled. But for that position of employment and the faith that his employer placed in his honesty, when he made the claim for his rental reimbursement, the offence would not have been possible. I accept that it is not a breach of trust in the narrowest sense but I find that it is akin to a breach of trust by an employee and that it must be considered in much the same light and manner for purpose of sentence. I have in coming to that conclusion, considered the case of R. v. Barrick (1995) 81 Cr. App. R.78 which was placed before me and R. v. Ying Lai-chau [1991] 1 HKLR 48 when Macdaugall J.A. (as he then was) adopted the principles set out in R. v. Barrick. I do not propose to go into the detail of those cases.

4. Having found that this is a case akin to a breach of trust case, I cannot say that it was wrong for the learned Magistrate to adopt the principle set out in Barrick that an immediate custodial sentence was one which was appropriate in dealing with a case of this nature.

5. The second ground of appeal is that the learned Magistrate wrongly sentenced the Appellant upon the speculative basis that if the offence had not come to light, it would have continued for a longer period. Having carefully considered the reasons was given by the learned Magistrate, I consider he meant no more than at the time of apprehension there is no indication that the Appellant intended to stop at that point, and that the matter would have continued, for what period he does not say, but that it would have continued past the point of apprehension. I do not consider that this finding and inference drawn by the learned Magistrate has in any way led him to arrive at an incorrect verdict.

6. The third ground of appeal is that the learned Magistrate failed to give sufficient credit for the substantial mitigating factors present in this case. I will not set out the details which have been set out in the Grounds of Appeal. The learned Magistrate very carefully considered all the background and circumstances of the appellant. He considered the effect it would have upon his future occupation both as an architect and with the Chinese University; he considered the effect that it would have upon his family, he took into account that the largest sum which the appellant could have been said to have taken without entitlement was $122,633; he took into account the restitution made by the appellant. All those matters which he ought to have taken into account he did. I cannot say, having considered all his reasons for sentence that the amount of discount that he gave in respect of those factors is wrong.

7. That leaves me with one last issue : was the starting point which the learned Magistrate adopted as the proper sentence to be imposed after trial the correct point. In my view, in all the circumstances given that whilst this is akin to a breach of trust case, it was not a breach of trust case in the traditional sense. I find that a term of 12 months' imprisonment as a starting point is not appropriate. Having considered the matter, I find that the learned Magistrate ought to have started at a point of 8 months' imprisonment, and given the mitigation and the discount that he gave for it and find that a proper sentence of imprisonment would have been that of 5 months.

8. I have considered what Mr Plowman has argued concerning the suspension of this sentence. Having considered the nature of the offence and all that was said in Barrick, and the degree to which this offence is akin to that of a breach of trust, I do not consider that a suspension is proper in this circumstance. The appeal is allowed, the sentence of 8 months' imprisonment is set aside and a sentence of 5 months' imprisonment is substituted therefor.