THE QUEEN v. WONG HOI

IN THE COURT OF APPEAL

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JUDGMENT

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Silke, J.A.:

1. The Applicant pleaded guilty before Judge Chism to ten counts of furnishing false information and three counts of obtaining services by deception. He was sentenced to total of 2 years and 9 months, that sentence being individual to each of the counts and concurrent.

2. The basis for those counts was a fraud perpetrated on Wayfoong Credit Ltd. by the Applicant and his son. The Applicant had been in a substantial way of business in the jewellery trade and had at least two genuine jewellery companies a third was set up for the purpose of assisting in the perpetration of this fraud - "the selling companies". He and his son setup four bogus companies "the buying companies" and the fraud depended upon Wayfoong permitting the discounting of post-dated cheques issued by the buying companies to the selling companies.

3. What happened was that the selling companies purported to sell to the bogus buying companies, jewellery. The bogus buying company gave in payment a cheque post-dated. Use was made of arrangements with Wayfoong Credit for discounting. The Wayfoong pro forma which had been taken from them by the Applicant was brought back to them together with a document evidencing the sale and the cheque itself. Apparently this method of discounting post-dated cheques, which oils the wheels of commerce by providing the seller of goods with the majority of his money and the buyer of goods with a period within which to sell those goods in order to get the monies into the bank - a somewhat risky business -, is a common factor in businesses in Hong Kong. Wayfoong makes its profit from the charges it levies for the discounting.

4. The false information charges related directly to the pro forma together with the cheque being presented to Wayfoong and the obtaining services related to monies received. The total fraud, in relation to those charges with which the Court dealt, and there were other charges left upon the file, amounted to $2,876,878 and ran over a three-month period from January to March of 1983.

5. The Applicant decamped to the U.S.A. in 1983. It was necessary to seek him out there and extradite him to Hong Kong for the purpose of his being tried upon these counts. His son, who also decamped, is still there and untraced.

6. The Trial Judge had before him a very comprehensive, detailed and helpful probation officer's report. It showed that the Applicant had attempted to place a good deal of the blame upon his son for he said that, while he was in a substantial way of business until his son joined him, the son then became involved in the smuggling of gems to Taiwan. Losses were incurred in that smuggling effort and this scheme was set up in order to cover up for those losses but, there being too many balls juggled in the air at the same time, it failed resulting in the departure of the Applicant. It was a deliberate fraud.

7. Mr. Dinan in this Court has relied upon and amplified as his main grounds that the Applicant was not the chief instigator, that he had been co-operative from the time he was arrested, and that, although this cannot now be pressed, some of the defrauded monies had been recovered by sale of the Applicant's property. It now seems that, while the Applicant's property has been sold, the proceeds of sale has gone to repay the genuine loans and mortgages involved in the failed business.

8. Two other points were raised, first: the Applicant had spent approximately 4½ months in custody in the United States, having been arrested on the 10th of December 1984 and being returned to Hong Kong on the 23rd of April 1985. It is suggested that this period should be credited to the Applicant's sentence for the Prison authorities here are not empowered by legislation to count it as part of that sentence.

9. We do not agree. The Applicant himself is the author of his own misfortune. He went to the United States where he co-operated with a member of Independent Commission Against Corruption who visited him there. Nevertheless, it was necessary to extradite him and he cannot complain of the period which he then spent in custody. It should not be a matter to be taken into consideration in the overall sentence.

10. Secondly: we are told, and this was not a factor of which the Trial Judge was aware, that the Applicant has made a statement and has indicated his willingness to give evidence in matters which will come on for hearing in about two months' time with relevance to these charges.

11. While the Trial Judge was not aware of that, and I shall come back to it in a moment, he did give full con-sideration to the matters which were placed before him in mitigation. He considered two authorities which were cited to him on sentences in frauds. Neither of the frauds involved in those two matters was as serious as the one here. They both decided that three years, after plea, was the appropriate sentence for matters generally of this nature. The Trial Judge allowed a discount of three months for the Applicant's clear record.

12. We think in the circumstances of this particular fraud, that sentence was a very generous one.

13. While the Applicant may be now prepared to give evidence, and I have no doubt that he will give evidence when the time comes, this is not a factor which should reduce the sentence further then it already has been by the Trial Judge. If he does, and comes up to proof, then no doubt the Executive will consider whatever action it may deem appropriate. In these circumstances, we refuse leave to appeal against sentence.