HKSAR v. WONG HING WAN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.88
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant and his wife were jointly charged with one offence of conspiracy to defraud to which each pleaded guilty. They were party to the obtaining of 18 Letters of Credit by use of fictitious cargo receipts and commercial invoices. The total value of those Letters of Credit was almost HK$15,000,000. The applicant was a trader in electrical goods and was, it seems, led into this course of criminal conduct by the prompting of another trader, the proprietor of L & P, to which his company owed money.

2. When sentencing the trial judge said:

".... Both (the applicant and his wife) have pleaded guilty at a very early stage; that both, who are parents of three young children, now face financial ruin as the company which they had built up over many years no longer exists and they are now subject to civil litigation; and that following their arrests in 1996 this matter has been hanging over their heads for a considerable period of time, and that that of itself has been a very real punishment.

In addition to those matters, Mr. Chiu emphasises that no loss has been caused to any other person or to any bank ....."

The judge then went on to say that the Letters of Credit were secured against assets in the form of real property belonging to the defendants so that there was never any possibility of the bank suffering a loss. He regarded this of great importance when considering sentence. He finally took into account that the applicant and his wife had lost their reputation, that their business was now insolvent and that they were left with nothing. He was satisfied that imprisonment for 12 months was a correct starting point which he reduced, because of plea, to nine months. It is, however, to be noted that the sentence of the wife, which was suspended, was calculated using a starting point of nine months which was reduced, because of plea, to six months.

3. Twelve months was, in our view, an unassailably proper starting point, indeed it was lenient, but for one matter, to which we shall refer in a moment, this court would have dismissed this appeal and ordered loss of time. We are, however, concerned that the judge did not give the applicant the customary one-third discount. That discount was, ironically, given to the wife who was not to serve any time in prison at all. We have repeatedly said that if the one-third discount is not given when it seems otherwise appropriate because of a timely plea, the judge should state his reasons for not so doing.

4. The appeal succeeds to the extent that the applicant will be allowed the full one-third discount. The hearing of the application will be treated as the hearing of the appeal. The appeal will be allowed and the sentence will be varied to one of eight months.