THE QUEEN v. HO MIU YUK AND ANOTHER

Headnote : activation of suspended sentences of imprisonment

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. The applicants, Madam Ho Miu Yuk and Madam Man Yuet Ying, appeared for trial before His Honour Judge Leonard on a charge sheet containing two counts of conspiracy to defraud. They were convicted and Ho - "D1" - was sentenced to a period of 2 1/2 years' imprisonment on the first and 2 years' imprisonment on the second charge, both concurrent and Man - "D2" - was sentenced to 2 years on the first and 1 year on the second charge, both concurrent.

2. The trial judge activated suspended sentences, the suspension of which was still current both at the time of the offence and the time of sentence, resulting in a totality in each case of 3 years and 9 months. Both sought leave to appeal against their convictions and, if necessary, their sentences. In the face of the Court today they have abandoned their applications, by leave, with respect to conviction. We are, therefore, concerned only with the sentences imposed.

3. The first conspiracy count ran from 1st May 1986 to 10th December 1987 and alleged conspiracy to defraud various companies, firms and persons, described as the "vendors", who might be induced to deliver goods to Cobi Company Limited and to Ho Miu Yuk, trading as Vanier Trading Company. They falsely represented to those vendors that payment would be made for the goods, and issued postdated cheques drawn on bank accounts of both Cobi Company and of Vanier Trading knowing that such cheques would be dishonoured on presentation.

4. The second charge was to an extent a mirror image of the first. The conspiracy ran from 10th March 1987 to 31st July 1987, the victim was the Chi Hing Second Hand Goods Company and the applicants offered to sell them goods, obtaining deposits for the goods, without ever having any intention of delivering those goods.

5. The two applicants were co-directors of Cobi and Ho Miu Yuk was the registered proprietor of Vanier Trading company. They had made arrangements with various people, eight companies in all were involved, to buy goods and, in the normal course of trade, to resell them. Goods were delivered and in certain cases sold under cost price. A series of postdated cheques were issued involving bank accounts in a number of different banks, each of which the applicants knew at the time the cheques were issued to be deficient in funds. In the majority of cases the banks had already written letters to them informing them of the misuse of the accounts. In certain cases minor cash sums were paid off, there was even one, as I apprehended it, single good cheque which was met. The creditors were further put off by a series of promises and excuses and, as we have said, by the protracted series of postdated cheques all dishonoured.

6. The second count concerned various representations made to Mr. Leung Siu King of the Chi Hing Second Hand Goods that goods ordered would be delivered and, if not, that deposits accepted would be returned. No goods were delivered, no deposits were returned.

7. At trial, Ho gave no evidence and Man who was, to an extent, indisposed also gave no evidence. Witnesses were called on their behalf.

8. In passing the sentence he did, the trial judge took into consideration the general sum which was still owing on these defalcations of $300,000, a sum which remains owing. Further that Ho had in fact invested the fruits of the conspiracy in her own factory in Shenzhen. She was 26 and she had four previous convictions for a precisely similar class of offence. Man was aged 24 and she also had convictions for a precisely similar class of offence.

9. Ho had been sentenced for one offence of evasion of liability by deception and three offences of obtaining property by deception for which she received concurrent sentences of 15 months' imprisonment suspended for two years. Those sentences were actually imposed during the course of the conspiracies which were taking place in respect of these instant offences.

10. Man was, on 30th July 1986, sentenced for an offence of evasion of liability by deception. She had been convicted on 8th January 1986 but, for some reason, the magistrate dealing with that matter had bailed her to appear for sentence on 30th July. Three further offences of obtaining property by deception were committed by her during the currency of that bail, one on 21st January 1986, one on 27th January 1986 and one on 7th March 1986. She had received a sentence of imprisonment of 6 months suspended for two years on the first and concurrent sentence of 15 months suspended for two years on the second set of crimes.

11. Miss Sze Kin, who appeared for the applicants in this Court, bases her submissions that the sentences are manifestly excessive on what she has described as the totality principle. She suggests that the trial judge in activating the suspended sentences, resulting in each case in a totality of 3 years and 9 months, was wrong, that he should have born in mind the particular totality, considered the circumstances of the offences and thought it to be too great. Either the suspended sentence should not have been activated at all or been activated only in part.

12. We have been told that, at one point in the course of the conspiracy, complaints were made by some of the victims at a police station. The police apparently took the view that the matter was something which should be dealt with by the civil courts rather than by the criminal courts. It was suggested because of this the applicants were misled into thinking that they could continue with their criminal activities. With respect, they cannot shelter behind whatever view was taken by the police at that time in considering what probably seemed on each occasion an isolated incident. The applicants knew full well, having been convicted of precisely similar offences at an earlier time, that their activities were criminal.

13. Had the 3 years and 9 months' Imprisonment be imposed only for these instant offences, we might well have been disposed to interfere. They were not. We have been referred by Miss Sze Kin to two authorities: Attorney General v. Li Ka Leung, Application for Review 24 of 1988 and Attorney General v. Dominic Cheung Kai Man [1987] HKLR 788. With respect, we do not think that either of those has particular relevance here.

14. When a judge considers what course he should take when an offence had been committed during the currency of a suspended sentence he is in duty bound to bear in mind the provisions of section 109C of the Criminal Procedure Ordinance. The sentencing Court is required to activate the suspended sentence with the term unaltered unless that Court forms the opinion that it would be unjust to do so - unjust to do so that is in view of all of the circumstances which have arisen since the suspended sentence was passed including the facts of the subsequent offence. If the Court does form the view that it would be unjust then it must give reasons as to why it does not activate or activates only partially.

15. We do not view for one moment the advice given or failure to take action by the police as being in any way a circumstance which has arisen after the suspension of the first set of sentences which could have lead the judge to exercise his discretion either not to activate at all or to activate partially. These were protracted courses of criminal conduct carried out deliberately and knowingly by both the applicants. Small tradesmen suffered. We can see nothing wrong in the totality of these sentences.

16. We have considered whether or not there should be a direction as to loss of time but, in the light of their abandonment of their applications in respect of conviction which is indicative of at least some remorse, we shall not take that course.

17. The applications for leave to appeal against sentence are refused.