THE QUEEN v. FUNG CHOI KIT

IN THE COURT OF APPEAL

No 168 of 1988

(Criminal)

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J U D G M E N T

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Hunter, J.A. :

1. On 14th March 1988 the applicant, Fung Choi Kit pleaded guilty before H H Judge Sanders to 3 charges of obtaining property by deception.

2. The charges related to events in December 1985 and January 1986. The applicant was employed as a car salesman. In each case he did the Same thing. He presented a hire purchase to a finance company, (in fact, they were  3 different companies involved,) which was in a way which was false to two material respects. First, the purchase price of the goods vehicle was inflated. Secondly, the hirer was recorded as having paid the, deposit when he paid nothing. This meant that believing these figures to be true, the finance company paid out to the then owner of the vehicle the full value of that vehicle, and paid out very much more than they would otherwise have done. It enabled the hirer to acquire possession of the vehicle without capital commitment at all and without paying a deposit. It earned the applicant some unknown sum in commission. Not surprisingly all the agreements went wrong. One hirer paid four instalments, the other two succeeded in paying one only. The vehicles then all had to be repossessed. It is said that the total loss suffered by the finance companies on the 3 transactions were HK$18,000. In these circumstances, the judge sentenced the applicant to a total of 12 months' imprisonment on each charge concurrent.

3. His counsel before us today, Mr Hagon, has frankly conceded at the outset that he cannot argue that this sentence is manifestly excessive. With that we entirely agree. But he has put before us in effect 3 particular circumstances whereby he is seeking to persuade us to show mercy.

4. The first point which I mention only to put it on one side, was to suggest that the trial judge did not fully understand the transaction. We see no substance in that.

5. The second point is that this young man was arrested and lost his job as a car salesman in July 1986. He was then bailed, investigated and had this matter hanging over his head, notwithstanding the fact that he was co-operative with the police, for some months when other enquiries were made. I notice that the original charge was not dated until December 1987. So he had a long period of uncertainty here.

6. Thirdly, the judge obtained a probation officer's report. This contains matter which has caused us some concern. The probation officer interviewed the applicant's supervisor at Universal Cars Limited, an assistant sales manager and the man who was meant to be supervising this young man's activities. What that man said indicates to us very strongly that such supervision and example as he received in that job appears to have been of the worst possible kind. This man suggested that the police had behaved unfairly to the accused. I quote from the report :-

"Because almost all car salesmen commit the same mistake. He even blamed the finance company concerned for oversight - that they did not inspect the goods vehicle before they approved the loan".

7. This to us reveals a lamentable state of affairs. Finance companies in such circumstances notoriously rely upon the truth of the documents presented to them by motor dealers. If this is the attitude of this man's supervisor at this particular firm, he has plainly no understanding of the law or morality. If that practice is in fact widespread in the motor industry, then this sentence as a deterrent is if anything inadequate. We would like to make it clear that in the future if a similar matter comes back before this Court we will certainly be minded to reach such a conclusion.

8. In the case of this young man, the fact that he has suffered from the example of a man like that early in his career, coupled with the fact that this offence was hanging over his head for some months, does enable us, we think, to take a more merciful course with him than would otherwise be proper, and would certainly be proper for any other person who comes before the court in the same position hereafter. In those circumstances, we allow the application and substitute such sentence as will allow him to be released today.