THE QUEEN v. CHEUNG SHEUNG-FAI

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JUDGMENT

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Nazareth V-P (giving the judgment of the Court):

1. The applicant, Cheung Sheung-fai, pleaded guilty before His Honour Judge Kilgour in the District Court on 6th March 1996 to 14 counts of obtaining property by deception and was sentenced to 4 years imprisonment on each count to run concurrently. He seeks leave to appeal against sentence.

2. The applicant was a director and shareholder of Charm Million Investment Limited, a trading company in Hong Kong. He had responsibility to arrange for shipment of seafood cargoes from companies in the People's Republic of China to the USA. The other two co-defendants named with him in the charge sheet were Kam Yiu-ming who was also a director and shareholder of Charm Million; and Pun Hang-shan, who was an employee of Charm Million. Both also had responsibilities relating to the shipment of seafood cargoes. The three of them got together and by deceptive means diverted funds which Charm Million had received from an importer in the USA of the seafood cargoes. Kam and Pun were also directors of Harbour Sound Investment Limited, and signatories of a bank account it had. The amount dishonestly diverted, a little in excess of HK$15 million, was paid into the Harbour Sound Investment Limited account. That amount having been successfully diverted, all three decamped to France on 17th November 1990.

3. Pun returned to Hong Kong on 7th October 1993, using a false name but was arrested in January 1994. On 15th March 1995 he pleaded guilty to the 14 counts and was sentenced to 3 years imprisonment and to a further year consecutive to those 3 years on one count of possession of a forged travel document on which he travelled to Hong Kong. In mitigation, his counsel submitted that Pun had only benefited to the extent of $860,000.

4. The applicant returned to Hong Kong and surrendered to the police on 20th December 1995. He outlined his role but claimed him that he was not the mastermind. He admitted that HK$7.9 million had been deposited into his account but claimed that all of the money was given to Kam Yiu-ming in cash or transferred to other accounts. The police were able to verify that $2m had been so transferred or given. The applicant claimed that he had received in cash only HK$800,000 from Kam; he had spent all the money on living expenses during the period prior to his surrender.

5. In his reasons for sentence the judge said this:

I think a proper starting point for a fraud on this scale is one of 5 1/2-6 years. I make a considerable discount for plea and good character. I differentiate sentence on the Deception charges for the reasons I have stated. In my view the proper sentence is one of 4 years imprisonment. I order that the Defendant serve the sentences concurrently."

6. For the applicant, Mr John Marray, who also appeared for him below, did not in the end press the first perfected ground of appeal complaining of the disparity between the sentences imposed upon the applicant and those upon Pun. He was right in that regard for the applicant as a director was in gross breach of trust, which Pun as only an employee, was not Moreover, the sentences were imposed by different judges on different occasions (see R v So Hung-hee and Another [1986] HKLR 1049; 1052).

7. The second perfected ground was that the judge failed to take adequately into consideration that the applicant (i) surrendered to the police; (ii) co-operated with the police; (iii) pleaded guilty at the first opportunity; and (iv) had a clear record There can be no question that the applicant surrendered to the police and pleaded guilty very early. The co-operation was of a very limited nature. There was no suggestion of actual assistance. He did not reveal when or how he managed to return to Hong Kong; nor has the enormous sum of $15 million diverted or any part of it been recovered. Moreover, the "good character" to which the judge referred was simply the absence of convictions; in any event, the judge cannot be faulted for not giving a specific discount in respect of it. He was entitled to assess the sentence in broad terms and to discount in that process both the applicant's plea and his "good character".

8. Turning to another aspect of Mr Marray's submission, a plea of guilty is by no means precluded from attracting the usual one-third discount for being delayed by the offender absconding from the jurisdiction (see R v Lo Chi-man Cr.App. 815 of 1995, unreported). Here the applicant was clearly given a substantial and adequate discount for his plea, even though a greater one could also have been justified.

9. Much the same point can be made in relation to the starting point. It cannot be faulted as too low. But a slightly higher one would also have been within the appropriate range.

10. All things considered, the result at which the judge arrived is not one with which we should interfere.

11. Notwithstanding Mr Marray's strenuous submissions, we dismiss the application for leave to appeal against sentence.