HKSAR v. AU YOUNG YU FAI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.605
(Criminal)

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J U D G M E N T

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Power, Ag. Chief Judge H.C. (giving the judgment of the Court):

1. The applicant faced one charge of conspiracy to defraud. This read that he, in April 1996, conspired with others to defraud such companies, firms and persons as might be induced to trade or deal with Resources Electronics Co. by dishonestly registering Resources at the Business Registration Office; representing that Resources was a genuine and honest business; issuing cheques drawn on an account for the Standard Chartered Bank and representing that the said cheques would be good and valid orders for payment after becoming due. He pleaded not guilty to that charge but was found guilty after trial before Deputy Judge P. Li and sentenced to imprisonment for three years. He now seeks leave to appeal against that sentence.

2. Wiseworld Electronics ("Wiseworld") was a company which dealt with electronic parts. A Mr. Choi, who represented himself to have a company named Resources and Electronics Company ("Resources") ordered goods from Wiseworld. He said his company was situated at Room 1303, 13th floor, 301-307 Lockhart Road. Between 11th and 22nd April, he purchased parts to the value of $1.172m. Payments was to be 30 days after collection of the goods. The goods were in fact collected by an unknown man who stamped invoices with the chop of Resources.

3. On 24th April, the sales manager of Wiseworld, visited the address given for Resources and found that it had no connection of any sort with any company of that name.

4. The applicant was arrested on 16th May and he admitted that he was the holder of the account on which the cheques had been drawn, that he had registered Resources as a business in his own name and provided the fictitious address. He said that when he opened the account he obtained ten cheques and that he had signed those cheques in blank for a friend named Lung Chun-tak who, he said, worked as a waiter at the Sun Tak Restaurant. He said that this friend then gave him $20,000 for his part in the business and that he had lost that money gambling.

5. We set out in full the "Reasons for sentence" given by Deputy Judge P. Li:

"I have taken into consideration the mitigation by your counsel that you have virtually a clear record, as the last conviction was in 1983. However, the amount of goods received was over $1.2 million and this was a well-planned plot.

I take 3 years as a starting point. I can find no reason to reduce it any further. I now sentence you to 3 years' imprisonment."

6. These reasons are wholly unsatisfactory. They do not set out any facts. They set out none of the mitigation other than to say that the applicant had "a virtually clear record". They fail to indicate the view taken by the judge of the culpability of the applicant and, indeed, fail even to set out whether or not the sentence was imposed after trial or plea. Indeed we know, only because counsel has informed us, the papers were wholly silent in this regard, that it was a sentence imposed after trial.

7. The grounds argued by Mr. Robin Walters are that the judge "failed to give any credit for the applicant's virtually clear record", and failed to sentence the applicant "on the basis that the only reward he received for his participation in the fraud was $20,000 or, alternatively, if he did not accept that mitigation, to state on what basis he did sentence him". We can understand, given the inadequacy of the reasons for sentence, why the applicant was advised to launch this application. However, putting the matter at its best for the applicant, that is accepting what he said in his cautioned statement, the sentence of three years after trial was, in our view, whatever his record, wholly merited. He was a willing, indeed vital participant in what he must have realized was a series of acts designed to set up machinery for fraud. We assess sentence upon that basis but think it proper to remark that he is fortunate that he is not being dealt with upon the basis that he was more deeply involved than that in the fraudulent scheme. Upon that basis we have no hesitation in saying that the sentence was a correct one.

8. We repeat that this court was not assisted by the Reasons for Sentence. We hope that this is the last time we will see such a manifestly inadequate document.

9. Loss of time would normally have been ordered in an appeal such as this where there was no merit. However, as it came about because of the inadequate reasons of which complaint could properly be made, we do not make any such order.