THE QUEEN v. HUNG HING-SHING ALIAS RAYMOND HUNG

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HEADNOTE

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                Conviction 5 counts of obtaining property by forged instruments. Judge, passing sentence, took into account of forgery. Wrong in principle since applicant had not been charged with forgery. Sentence reduced.

IN THE COURT OF APPEAL

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JUDGMENT

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Li, V.-P.:

1. The applicant was convicted of 5 charges of obtaining property by forged instruments on his own plea. The agreed fact was that on 5 occasions between the 15th July 1982 and 30th November 1983 he obtained from his employer the American International Assurance Company (Bermuda) Limited a total of some US$51,262.00 by forging a signature of a policy holder of that company on policy loan agreements. The applicant was an agent of the insurance company from September 1971 to December 1982. One Mr. Lee took out three policies during the applicant's course of employment through the applicant. The applicant forged this signature on policy loan agreements relating to Mr. Lee's life policies, and received various sums as set out in the 5 charges. Such loans were purported to be issued to a Mr. Lee. These cheques were sold to money changes by the applicant who appropriated the money.

2. In his Reasons for Sentence the trial judge set out the agreed facts, acknowledged that he had a clear record, that he made some restitution and that he suffered loss in his business because he had an extravagant wife. However the judge rejected the case of R v Barrick ⁽¹⁾ as setting down a tariff, he said (P. 7):

 

'In the case before me I used the sum involved as a guide but also here not only fraud and breach of trust were involved but also actual forgery which to my mind served to aggravate the offence.

 

Learned counsel for the applicant suggested that the judge having given 6 months' discount and yet sentenced the applicant to 3 years' imprisonment in respect of each count to run concurrently virtually set the starting point at 3½ years. That he contended was manifestly excessive.

3. The second ground was that the judge erred in holding that the actual forgery served to aggravate the offence. There were additional grounds but it is not necessary to refer to them.

4. Had the judge taken all the circumstances of the offence and mentioned forgery of instruments we would not be inclined to interfere. However it is quite clear that in the judge's mind, when he set the 3½ years as the starting point he actually took forgery into consideration. In our opinion the judge should have sentenced the applicant solely on the offences charged. Indeed, the applicant could have been charged, additionally, with forgery. That was not the case.

5. For these reasons, we feel that there was an error in principle. Accordingly we grant leave to appeal against sentence, treat the application as the appeal proper. The appeal is allowed. The sentences are varied to the extent that there should be two years imprisonment in respect of each count and the sentences are to run concurrently.

(1) Times May 4 CA