R. v. LAU SIU YU

IN THE COURT OF APPEAL

1995, No. 812
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant was on his own plea convicted on three counts of evasion of liability by deception and one count of attempted evasion and sentenced to a total of two years' imprisonment. He seeks leave to appeal against these sentences.

2. The offences occurred over a period of approximately 14 days in February 1994.

3. The applicant opened a margin account with an investment company called Sanfull Securities Ltd.

4. On the same day as he opened the account the 15 February 1994 he purchased shares the cost of which amounted to $2.75 million. Over the next three days he purchased further shares to the value of $3.6 million.

5. On 21 February he handed over to Sanfull a cheque for $3 million which was dishonoured on presentation to the bank. Before the cheque was dishonoured he purchased a further $830,000 worth of shares. The account upon which the cheque had been drawn had been closed by the bank some months earlier as a result of the unsatisfactory manner in which it had been operated.

6. The applicant lodged further cheques for $4 million, $4.5 million and $500,000 all of which were dishonoured.

7. At the hearing before His Honour Judge Wong there was a Newton hearing. The applicant gave evidence concerning business transactions he had had in China and of his hope that a man called Chu would come to his assistance. This evidence was not accepted by the judge and he was satisfied that the guilty plea had been properly entered.

8. The main ground of appeal is that the judge adopted too high a starting point when he said that 30 months' imprisonment was appropriate. We disagree. This was a calculated deception and a substantial loss was incurred by the victim. As a result of a fall in the market they suffered a loss of between $1.7m and $1.8m.

9. The other main ground of appeal is that insufficient credit was given for the guilty pleas. 20% discount was given instead of the usual 1/3 discount. It is true that the discount was somewhat parsimonious but there may well have been a good reason for this. We do not think that we would be justified in interfering with the sentence as the starting point was on the low side.

10. Another complaint which was made was that the solicitor representing the applicant at the hearing below was not afforded an opportunity of mitigating the offence. This was most unfortunate. We agreed to hear Mr Tong who represented the applicant on what matters would have been placed before the court.

11. Mr Tong has now placed before us all of the material in an affirmation affirmed by the applicant. This refers to his unfortunate medical background and the efforts he has made to overcome these difficulties. We do not consider that even if these factors had been duly weighed by Wong DJ they would have amounted to compelling mitigation.

12. There is also a complaint that a probation officer's report should have been called for. We do not see any merit in this complaint.

13. Having regard to all of the matters which have been raised it is impossible to say that this sentence was either manifestly excessive or wrong in principle and accordingly this application has to be dismissed.