THE QUEEN v. CHAN HUNG NGAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 113 OF 1988

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BETWEEN

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J U D G M E N T

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1. The Appellant was convicted after trial in the Magistrates' Court on a charge of obtaining property by deception contrary to Section 17(1) of the Theft Ordinance. He was sentenced to imprisonment for nine months. He now appeals against that sentence.

2. The evidence accepted by the learned magistrate and which is not now in dispute was that a Mr. Chan lost a bag containing 20 stamp chops valued at $15,000. After his loss he advertised the fact of his loss on the radio and promised a reward for the return of his lost property. A couple of days later he received a telephone call from a man who said his name was Chan, claimed that he had the first Mr. Chan's property and would return it for a reward of $500.

3. There is no dispute now that the second Mr. Chan is our Appellant.

4. The Appellant arranged with Mr. Chan, the owner of the lost property, for the reward money to be paid by depositing the sum of $500 to a numbered bank account at a specified bank. Mr. Chan deposited the money at about 3 p.m. one day and after making deposit then went to keep a rendezvous at 5 p.m. with the appellant. But the appellant did not appear, and so.

5. Mr. Chan paid out his $500 as reward but did not receive his lost property in return.

6. The learned magistrate in sentencing the Appellant said that he took into account that the Appellant in carrying out his scheme had made use of and abused the very efficient banking facilities and services now available for the deposit and speedy withdrawal of funds in savings account. He went on to say this:

"These facilities are now being

used by a very large section

of the public. I felt that

in the interest of the public

a deterrent sentence was necessary."

7. The Appellat is now aged 30 and he does hae a criminal record. In 1975 within the space of three days he was convicted on ten counts of theft and sentenced to terms of imprisonment of 5 months on some charges and 6 months on another. Most of the sentences were ordered to run concurrently but they are all suspended for two years.

8. The learned magistrate made it clear that with regard to the Defendant's criminal record he did not sentence him on the basis of his record but, because of his record, held that the Appellant was not entitled to be treated as a first offender.

9. The learned magistrate also described the offence as loathsome because it was a fraud practised on a person who had already suffered a loss and the Appellant therefore had preyed on the misfortune of another. He also was of the view that the scheme was conceived by the Appellant with "ingenuity and subtlety".

10. Mr. Tang who appears for the Appellant on his appeal against sentence has advanced five main grounds for contending that the sentence is manifestly excessive. In the course of his submissions, he referred me to two decisions in this Court. One by Rhind, J. in Hou Kam Sing Mag. App. No. 5676 of 1985, was a case in which the Defendant had been convicted on a number of charges of evasion of liability by deception and some of obtaining property by deception. The total amount covered by the frauds in that case was $15,000 and the Defendant, was sentenced to 18 months' imprisonment overall. On the appeal Rhind, J. said this:

"By the standards of fraud

in Hong Kong, $15,000 is not

a vast amount of money and,

under the tariff, effective

sentences of 18 months are

normally reserved for those

who have dishonestly obtained

sums of money, ten times or

more in excess of what was

involved here."

He allowed the appeal, quashed the sentences and substituted an effective sentence of imprisonment for six months.

11. The other case was Wong Sui Fat, Cr. App. No. 323 of 1983, a decision of Penlington, J. The offence was not similar, being a case of evading liability by deception. But in the course of his judgment Penlington, J, said this:

"In my view, only in cases

where a substantial amoun

of money is obtained by fraud

is an immediate custodial

sentence justified.''

12. In this case, the amount of money obtained was small. But I do think the learned magistrate was entitled to take the view that it was a mean offence even though the amount obtained was only $500. It was a mean offence in that, as the magistrate pointed out, the Appellant planned to take advantage of another's misfortune.

13. On the other handy, I do not see why there was a need for a deterrent sentence. The magistrate thought that because in this day and age it is possible for one person to deposit money to the credit of another and for the other to enjoy the advantage of that credit on the same day, a fraud which made are of that improved facility called for a deterrent sentence. I think the magistrate was wrong in thinking that a deterrent sentence was called for because of that factor.

14. The magistrate also thought that this was a carefully planned offence and that it had the characteristics I have already mentioned of ingenuity and subtlety. Carefully planned the offence may well have been, but I cannot see any ingenuity or subtlety in the committing of an offence where one leaves his trail so clearly visible as the Appellant did in this case. He used a bank account, opened in his own name. His connection with the commission of the offence was traceable as soon as a report was made to police and the police went to the bank where the deposit and withdrawal were made. This was a mean little fraud and no more.

15. In my view, if a custodial sentence was warranted then such a sentence certainly should not have been in excess of imprisonment for three months. As he has now experienced 98 days of incarceration and as he has, through his counsel, given an undertaking that he will through his solicitors repay the $500 to Mr. Chan, I propose to allow the appeal, quash the sentence and substitute therefore such sentence as will enable his release today.