CHEUNG CHIU HUNG v. THE QUEEN

IN THE COURT OF APPEAL

Criminal Appeal
No. 359 of 1987

BETWEEN

CHEUNG Chiu-hung

Applicant

and

THE QUEEN

Respondent

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Coram: Hon. Roberts, C.J., Hunter, J.A. & Nazareth, J. in Court

Date of hearing: 10th September, 1987

Date of delivery of judgment: 10th September, 1987

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JUDGMENT

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1. The Appellant seeks leave to appeal against the sentence of 18 months imprisonment imposed upon him for the theft of 84 batches,each of 400 Hong Kong & Shanghai Bank shares, from his employer, the Tung Shing Securities Co. Ltd. The shares were found tobe missing on the 16th February 1987 and on the 20th March, an unknown person delivered 44 of those batches for transfer of ownership.

2. We are informed by Mr. Tsang who appears for the Applicant, that on the 24th April the latter admitted to his employer that he hadtaken the shares and that two other persons were involved. On the 30th April the police arrested the Applicant. He made a clean breastof the matter and co-operated fully. He has since repaid $209,460.00. The balance of the employer’s loss has been repaid by two otherDefendants with whom he was involved. The employer supports a lenient sentence. The Applicant pleaded guilty at his trial and a veryfavourable probation report was received.

3. Mr. Albert Tsang in an eloquent plea on behalf of the Applicant, has also drawn our attention to a number of other features of thiscase which militate strongly in favour of the Applicant. He is only 22, and was 21 years of age at the time of the offence. It wasone single act when he took all the shares, succumbing to temptation. It was a foolish act, detection being inevitable. He not onlymade a full confession very early on, but pleaded guilty at the first opportunity. There is also strong family support.

4. However, the Applicant’s record is not entirely untarnished. He has a previous conviction for theft. But this, it turns out, wasfor keeping a student travel card he found. He was fined $200. We do not regard that offence as particularly material in the circumstances.In addition, as the trial judge observed, the Applicant’s act was in the nature of a breach of trust. Again, in this regard, althoughthe Applicant was in a sense entrusted with these shares, he was not actually employed in a position of trust. His duties were inthe nature of those of a messenger and he received only $1,900 per month as salary. Manifestly, a very low degree of trust was involved.

5. Looking at the matter from the position in which this court finds itself, it would seem, in the additional light shed upon the matterby Mr. Tsang, that the two months imprisonment that the Applicant has already undergone has served to bring home to him the seriousnessof his offence. This court is in a position to substitute a suspended sentence and at the same time to reinforce the period of suspensionwith supervision by the Director of Social Welfare. He are disposed to do that as an act of mercy, which should not be regarded asa precedent.

6. Accordingly we grant leave to appeal, allow the appeal, and substitute a sentence of 18 months imprisonment suspended for a periodof two years during which the Applicant will be subject to the supervision of the Director of Social Welfare.

(G.P. Nazareth)
Judge of the High Court

Mr. Albert Tsang instructed by Messrs. Charles Yeung, Clement Lam & Co., for Appellant.

Mr. G.J.X. McCoy, Senior Crown Counsel, for Respondent.