THE QUEEN v. CHEN A CHING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 53 OF 1,986

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BETWEEN

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JUDGMENT

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Power, J. :

1. In this matter the applicant CHEN A-ching originally faced two charges of conspiracy to defraud and one charge of possession of implements for forgery.  She was convicted upon both of the conspiracy charges and on the third charge of possession of implements for forgery.  She was sentenced to 2 years and 3 months on each of the conspiracy charges to be served concurrently, and 3 months to be served consecutively on the possession charge.  She faced the first of the conspiracy charges in company with another defendant CHI Wu-i. It was charged she and CHI had on or about 12th June 1985 conspired together to defraud the Hong kong & Shanghai Banking Corporation of HK$35,000.00 by dishonestly reporting to the bank the loss of 70 Thomas Cook Travellers cheques, each in the denomination of $500.00.  The second conspiracy charge alleged an offence on or about the same date and way also prefixed against CHI Wu-i.  It was similar to the first charge except that the travellers cheques were U.S. dollar travellers cheques and the dishonest reporting was alleged to have been done by one LEE Shi-fan.   Both the appellant and the defendant CHI Wu-i pleaded not guilty to the charges and both, after trial, were found guilty.  The appellant and Chi came to face the Court because they had returned to Hong Kong on the 7th August 1985, having left the Colony immediately or very shortly after the commission of the offences.

2. The trial judge, having found Chi guilty of the 1st charge and acquitted him in the 2nd charge, ordered that he be sentenced to imprisonment for a period of 20 months and that the sentence be suspended for a period of 3 years.  He was also convicted on a 3rd charge, which involved having possession of a forged passport, and was on this charge fined a sum of $15,000.00.

3. The applicant was, as I have said, sentenced to immediate terms of imprisonment.   Having considered all that has been placed before us, we find ourselves at a loss to understand why the sentence imposed on Chi was suspended.  The trial judge had found Chi guilty of a serious conspiracy charge.  He did, in mitigation, suggest that he was returning to the Colony to withdraw his claim for a refund. Even if some weight be given to that suggestion the charge was, in our view, one that merited an immediate custodial sentence such as was imposed upon the applicant.  Although the sentence imposed upon the applicant of 2 years and 3 months is, as Counsel has urged upon us, given the overall amounts involved, a severe one it is not one with which this Court would necessarily interfere.

4. There are, however, considerations in the present case which make it an unusual one. Not only was the other defendant dealt with in a much more lenient way than was the applicant, but she has also urged upon us very compelling personal circumstances.  This Court held, in Criminal Appeal 408 of 1985, that, in the case of defendants convicted of different offences, disparity is not a ground for interfering with the proper sentence but that in the case of different defendants convicted of the same offence, a disparity can be considered when there has been a failure properly to apportion blame between the accused.   We are satisfied that such a failure occurred in the present case. Having taken into account all of the circumstances, and particularly the disparity, we are satisfied that this appellant may well be labouring under a sense of injustice.  We are quite satisfied, nonetheless, that a substantial custodial sentence was called for and it is with some reluctance that we interfere with the sentences imposed.

5. We allow the appeal as far as the sentences against the two conspiracy charges are concerned.  These sentences will be varied to ones of 12 months on each charge to be served concurrently.  The sentence of 3 months on the other charge will stand and it will be, as was originally ordered, consecutive to the sentences imposed on the conspiracy charge.