R. v. CHUNG KIN WAH

IN THE COURT OF APPEAL

1996, No.700
(Criminal)

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J U D G M E N T

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Power, Ag. C.J.(giving the judgment of the Court):

1. The applicant in this matter pleaded guilty to two charges of dealing with property known or believed to represent proceeds of an indictable offence. He was sentenced in the District Court by Judge Whaley to a total of 2 1/2 years' imprisonment being given two years on each charge with six months of the second charge being ordered to be consecutive to the sentence imposed on the first charge.

2. In each case a man, who seems to have been known as Law Kin-chak, fraudulently mortgaged the property of another. This man obtained in the first case $1.979 million and in the second case $1.980 million as a result of these fraudulent mortgage transactions. The applicant knew that Law was perpetrating these frauds although he did not take any active part in the fraud itself. After Law had by his false representations persuaded banks to advance the money the applicant went to Macau to collect the proceeds for Law.

3. The sole ground of appeal of the applicant is that the total sentence of 2 1/2 years was manifestly excessive. This is urged upon the basis that the judge failed to take into account that he had in his cautioned statements assisted the police in their investigation of the activities of Law and had assisted them in arresting Law.

4. The trial judge said when sentencing:

"The maximum sentence provided for this offence is a fine of $5 million and 14 years' imprisonment.

In all the circumstances - bearing in mind the relatively minor role played by the defendant, and particularly his clear record - I have taken a starting point for these offences of 2 1/2 years' imprisonment after trial. In recognition of the defendant's belated plea of guilty, he is not entitled, in my view, to a full discount in view of the lateness of the plea of guilty, but he is certainly entitled to a substantial discount. I discount the 2 1/2 years to a sentence of 2 years' imprisonment on each charge.

The defendant committed two separate offences here and, although they are only separated by some four days - and keeping in mind what Mr. Leung emphasised, that they do spring from the same wrongful fraudulent scheme - nevertheless, in principle, they do call for consecutive sentences to be imposed. At the same time, it is important to keep in mind the principle of totality to ensure that the total effect of the sentence that I impose on the defendant is not excessive in all the circumstances.

Accordingly, I order that the sentence on the 2nd charge is to commence running 18 months prior to the expiration of the sentence on the 1st charge. In other words, six months of the sentence on the 2nd charge will run consecutive to the sentence on the 1st charge. So the total effective sentence on both charge is 2 1/2 years."

5. The cautioned statement should have been placed in the appeal bundle. It was not. However we have allowed Mr. Forrest, who appears for the applicant, to hand it up to us. and we have now had the opportunity now to read it. An offender who does no more than make a statement which, when setting out the circumstances of the offence, implicates others and who then pleads guilty at the first opportunity is entitled to a one-third discount. A more belated plea may well result in a lesser discount. This applicant admitted the offence, he set out how it occurred and he named others involved in it. He did not then plead guilty at first opportunity but waited until the voire dire was almost completed before pleading. We do not consider that we could properly interfere with discount of 20% given by the trial judge. Indeed we cannot help but observe that in all the circumstances the overall sentence of 2 1/2 years was lenient.

6. In the course of argument Mr. Forrest has raised one further submission. He says that counsel when addressing the judge in mitigation indicated that his client was prepared to assist the police further and that the police have failed to follow up on this offer depriving the applicant of the opportunity further to assist and to gain a greater discount. The police have now, we are told, interviewed the applicant but nothing material has come out of the interview. We are not prepared in those circumstances to give any further discount. We state only that should the applicant materially assist the police in bringing Law to justice then it will be for the executive to take whatever action they consider appropriate.

7. The application for leave to appeal against sentence is, therefore, dismissed.