|
CACC000466/1996
IN THE COURT OF APPEAL
1996, No. 466
(Criminal)
_______________
| BETWEEN |
|
|
|
THE QUEEN |
|
|
|
|
|
AND |
|
|
|
|
|
NG KAN TONG |
|
_______________
Coram: Power, Ag C.J., Bokhary, J.A. and Sears, J. in Court
Date of hearing: 10 April 1997
Date of judgment: 10 April 1997
_______________
J U D G M E N T
_______________
Bokhary, J.A.:
1. This is an application for leave to appeal against sentence out of time. It comes to us from the District Court.
2. In that court, the applicant was the 3rd accused. We mention that because it will be necessary to refer to other accused.
3. On August 5 last year, HH Judge Gould convicted the applicant after trial on two charges of conspiracy to defraud. And on the same day, the judge sentenced him to 18 months' imprisonment. That was by way of concurrent terms of that duration on each charge.
4. The applicant needs an extension of time because his notice of application is dated November 13 last year, three months after the judge sentenced him.
5. We turn to the particulars to the two charges on which he was convicted, the 4th and 5th charges.
6. The particulars to the 4th charge are that the applicant and the 4th accused:
"on divers days between the 20th day of January, 1994 and the 27th day of April 1994, conspired together to defraud the Dah Sang Bank Limited, by dishonestly causing and permitting the said bank to issue a Letter of Credit No. 50004501 in favour of Wing Tat Hong (a firm) and to make payment thereunder, knowing that:-
(i) there was no underlying commercial transaction relating thereto; and
(ii) the documents evidencing the supposed underlying commercial transactions were false."
7. Wing Tat Hong was a partnership. There were three partners. This applicant was one of them. The other two were the 1st accused and a man named Lam. Mr Lam did not face any charge.
8. Moving on to the 6th charge, the particulars thereto are that the 1st accused, the 2nd accused and this applicant:
"on divers days between the 8th and 28th day of February 1994, conspired together to defraud the Hong Kong Chinese Bank Limited, by dishonestly causing and permitting the said bank to issue a Letter of Credit No. 94000794 in favour of Wing Tat Hong (a firm) and to make payment thereunder, knowing that:-
(i) there was no underlying commercial transaction relating thereto; and
(ii) the documents evidencing the supposed underlying commercial transactions were false."
9. Pursuant to the conspiracy charged under the 4th charge, the Dah Sang Bank was defrauded of $204,630.00.
10. And pursuant to the conspiracy charged under the 6th charge, the Hong Kong Chinese Bank was defrauded of $89,760.00.
11. Both banks have recouped their losses. The 4th accused raised funds to repay the Dah Sang Bank. And the Hong Kong Chinese Bank obtained repayment by calling in security which this applicant had put up.
12. The judge considered 18 months' imprisonment to be the appropriate starting point for each of these offences on its own. Because there were two offences, he took a starting point of two years. That starting point we do not fault.
13. Giving the applicant some credit for his previous good character and for the fact that at one stage he was going to plead guilty, the judge allowed a discount of six months. Hence the concurrent terms of 18 months' imprisonment.
14. The judge said that those were the only two points of mitigation which he considered significant.
15. But there was another matter of significance here, namely the fact that the two banks had recouped their losses in full, one of them by calling in security put up by this applicant.
16. These were incredibly silly offences for this man to have committed. As he told us, he has lost his reputation; the partnership is now insolvent, he is left with nothing to show in his mid-50's and after being of previous good character until these offences.
17. Thus, it seems to us that there was a significant mitigating factor which the judge did not take into account, namely the fact that banks have recouped their losses and have done so in the way we have just described.
18. All things considered, we propose to extend time, treat the application as the appeal itself and allow the appeal by reducing the sentence to such an extent as will result in this man's release today.
19. He deserved punishment, but he has now endured sufficient punishment.
| (N P Power) |
(K Bokhary) |
(R A W Sears) |
| Acting Chief Justice |
Justice of Appeal |
Judge of the High Court |
Representation:
Applicant in person
Mr A A Bruce QC & Mr Edmond Lee (of the Attorney General's Chambers) for the respondent
|