THE QUEEN v. WONG WING LUNG

Headnote

Two sets of calculated fraud involving $1.66 million and $1.46 million and one charge of possession of false travel documents. No restitution. Consecutive terms of two and a half years (fraud), one year (travel documents) and two and a half years (fraud) held to be "by no means too severe".

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JUDGMENT

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Power, J.A.

1. The applicant pleaded guilty to a charge of conspiracy to defraud and to one of possession of forged travel documents. The particulars of the conspiracy to defraud were that he, between July and October 1986, conspired with one NG Wai-kwan and one CHENG Chung-mo to defraud companies, firms and persons who delivered goods to Holder Motors Trading Company Ltd. by dishonestly falsely representing to them that cheques drawn on the company with the Ka Wah Bank would be good and valid. The 2nd charge was possession of false travel documents, namely a People's Republic of China passport and a Republic of China passport.

2. The facts are succinctly stated in the Reasons for Sentence as follows:

 

"In short an existing company was brought and used to order goods in exchange for which the defendant and his co-conspirators gave worthless cheques. It was conceded by Miss Li on behalf of the defendant that the defendant and his co-conspirators never intended to conduct a bona fide business through Holder Motor Trading Company Limited. Their purpose was fraudulent from the outset. Miss Li did however urge me to take into account that this defendant was not the person who initiated the conspiracy. The total sums involved in the conspiracy amounted to 1.66 million."

3. It was a carefully planned operation which, as it now stands revealed, is redolent of calculated fraud. An unfortunate printer Mr. Kam Kwok-choi was defrauded of $13,680. The Waly Decorative Products Co. was defrauded of $197,000. Six jewellery companies were defrauded of about $1,000,000. Order Industries was defrauded of an amount which does not appear clear from the papers but it was less than $24,000. Wing Kay Electrical Co. was defrauded of $43,000.

4. The trial judge said when sentencing on the 1st charge:

 

"A co-conspirator Cheng Chung Ho was convicted of a similar charge in the District court after trial. He received a sentence of three years imprisonment. I was informed by Mr. Pethes for the Crown that there was little to differentiate the roles of Cheng and the defendant in the conspiracy.

 

        Bearing in mind the defendants plea of guilty and his clear record I sentenced the defendant to 2 1/2 years imprisonment on charge 1."

The trial judge went on to say that the 2nd charge was an offence which in normal circumstances carries a sentence in the region of 18 months imprisonment. He observed that two passports were involved and that the Chinese passport had been used by the defendant on trips between the Philippines and Hong Kong and the Taiwanese passport for travel between the Philippines and Taiwan. He said:

 

"Despite the normal tariff for this sort of offence I took the view that the correct overall sentence for the defendant was one of 3 1/2 years imprisonment. I therefore sentence him to 1 year imprisonment on these two to run consecutively to the sentence imposed in respect of charge 1."

5. The applicant now seeks leave to appeal against those sentences. The Grounds set out that the applicant has a clear record and, that he pleaded guilty. He asks, urging family considerations, for concurrent sentences. A matter which the court cannot but have in mind is whether or not any payment or any offer of payment was made to the unfortunate individuals who have been defrauded of very substantial sums of money. The fact of the matter is, as admitted by the applicant today, that no money has been repaid and no offer has been made. He says he has been thinking about it.

6. The sentence he received on those charges was imposed on the 16th of May 1989. On the 4th of July he came before Judge Corcoran on another charge of conspiracy to defraud. The facts in that charge are set out in the Reasons of the judge as follows:

 

"This was a well thought out and organized conspiracy between this accused and 2 others to defraud various trading firms of goods by means of cheques which would not be honoured on presentation. In March 1988 this accused set up and registered Fairter Development Company and opened a bank account for it. Fairter was not a genuine trading company. Between July and October accused 2 employeed various staff for Fairter. On various dates between 1st and 19th November, Fairter ordered and obtained goods from 16 firms to a total value of $1.46M, paying for the goods by means of 16 separate cheques. On 20th November 1988 the staff of Fairter were told that the company was closing down. None of the cheques were honoured. Nothing was recovered."

7. The applicant again pleaded guilty to this charge. The trial judge, taking into account his plea of guilty and his cooperation with the police, said when sentencing:

 

"I considered firstly what would have been the proper overall sentence for this offence of conspiracy and the 2 offences dealt with in May if the accused had been tried for all 3 offences together after pleas of Not Guilty. I thought 8 years would have been appropriate. Taking that into regard, together with the accused's pleas of guilty to this offence and his early confession to the police and his clear record before the early conviction, I considered 2 1/2 years was the appropriate sentence to be imposed at this stage for this offence."

8. The approach of the trial judge was, in our view, a perfectly proper one.

9. The applicant now appeals against that sentence urging that it was too severe given he was cooperative with the police, that he pleaded guilty, and that he is the sole breadwinner of his family and wishes to turn over a new leaf. These frauds were the same kind of calculated frauds as were committed in 1986. Again there has been no restitution. The plea for leniency advanced by the applicant has a hollow ring when placed in the context of the financial hardship visited by him and his confederates upon the victims. He has, when addressing the court, added that his sentence was unduly harsh when compared with that of one of his co-conspirators. We find no weight in that suggestion.

10. The sentences were, given the circumstances, by no means too severe and the application for leave to appeal against them is therefore refused in both cases.