R. v. WONG CHIAN SEN

IN THE COURT OF APPEAL

1994, No. 389

(Criminal)

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J U D G M E N T

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Mortimer JA (giving the judgment of the Court):

1. The applicant, having abandoned his application for leave to appeal against conviction, pursues his application for leave to appeal against his sentence. He was convicted, after trial of an offence of obtaining property by deception, by Deputy Judge Jenkins in the District Court on 18 July 1994. He was sentenced to 2 years imprisonment.

The facts

2. The facts can be simply stated. The applicant and a partner formed the company in 1987 to trade in computer parts. But in 1991 the applicant bought out his partner and continued to run the company with his wife as co-director. The company thereafter traded successfully. It had two bank accounts, one with the Kwong On Bank with an overdraft facility of $470,000 and another account with the Kwangtung Provincial Bank, but that account required both the signatures of himself and his former partner. That situation was not regularised when his partner left.

3. In the early part of 1992, the company began to run into financial difficulties. By June 1992, the Kwong On account was overdrawn almost to its limit. The applicant began to sign cheques on the other account for considerable sums although those cheques only bore one signature. He must have known that they would not be met. In relation to this particular charge, however, the cheque was for a sum of $387,000 for the purchase of computer parts from a company called Longshine Technology Ltd. That company insisted upon having a cash cheque at the time of the delivery of the goods. The cheque was made out by the applicant and handed to his accountant, a lady called Ng. She completed the cheque on 26 June when the goods were delivered.

4. At that time the Kwong On Bank account was at its limit. The judge found that he must have known of the time that the cheque would not be met. His defence was that he hoped, having sold on the goods to a customer in China, he would obtain money from that customer and get it into the account in time for the cheque to be met. The judge rejected the applicant's account and found that there was no prospect of him getting that money. His customer, if he existed, already owed a sum exceeding $2,000,000 before those goods were delivered.

Mitigation and sentence

5. The judge accepted that this was not a case where the defendant had set up a sham business as a vehicle for fraud. He accepted that the applicant had been tempted at a time when the company had run into financial difficulties. But he took no precautions to protect his suppliers and continued ordering goods of a substantial value in the knowledge that he would be unlikely to pay for them. It was, he said, on the basis of a reckless deception that he found him guilty. That being the background, he ignored an earlier conviction long ago for theft when the applicant was only 23.

6. The mitigation advanced at trial was that following the collapse of the company, the applicant's wife had divorced him. He was then working as a restaurant manager in Canton for $10,000 a month and living with his father whom he supports.

The application

7. Mr Grounds who appears on this application submits that this was an unplanned offence which arose because of the cash flow situation the applicant was placed in and that he was tempted to commit the offence. In these circumstances, the sentence of 2 years to a man of 35 who had suffered greatly in consequence of his conviction is manifestly too long. He cites a number of cases. We would emphasise what was said in R. v. Cheung Wai Lun & Lau Ka Man, Cr App 179 of 1988. Penlington JA, giving the judgment of the court, said:

"... We have been referred to authorities on levels of sentence for such frauds but each case must depend on its own facts and the background of each defendant which are infinitely variable."

The value of citing numbers of unreported cases on sentence is extremely limited.

Conclusion

8. We take the view that in all the circumstances the sentence in this case was undoubtedly on the high side, but having regard to all the facts, it was not one which was so high that this Court should interfere. It was a sentence justified by the facts of the case and the circumstances of the applicant. This application is refused.