THE QUEEN v. TO HON KEUNG

BETWEEN

__________

JUDGMENT

__________

Kempster, J.A.:

1. On 2nd August of last year TO Hon-keung was convicted by Judge Baily at Victoria District Court of obtaining property by deception. Against that conviction he applies for leave to appeal.

2. The circumstances of the offence disclose what may colloquially be described as a confidence-trick. The victim was persuaded by a man called Ming Chai that furs could be sold to him for the sum of $150,000 and that the greater part of the purchase-price should be paid into a new savings account which the victim was himself to open. On 16th March 1985 Ming Chai and the victim attended at a branch of a well-known bank so that the victim might deposit in the account which he had opened that morning $145,000 in cash. That same morning the applicant had opened a savings account with the same bank and, as a result of switching places in queues and substituting one account book for another, the $145,000 found its way not into the victim's newly opened account but into that of the applicant. Some hours later the moneys were withdrawn at a different branch of the bank and, it is common ground, by the applicant whose signature was necessarily required. The applicant did not give evidence below and the judge found that the coincidences were such as to persuade him, so that he was sure, that the applicant was a party to the deception which had been practised on the victim through the guile of Ming Chai.

3. Mr. Alderdice, who appeared for the applicant, has sought to persuade us that the circumstancial evidence fell short of that required to afford the trial judge the necessary assurance. But he has been candid enough to concede that, in the absence of evidence from the applicant, this is an argument which may lack conviction. It certainly has not convinced us. The application for leave to appeal against conviction is accordingly dismissed.

4. Between the stirrup and the ground Mr. Alderdice obtained from us leave to apply to appeal against the sentence of 3 years imprisonment passed on TO; out of time. Having regard to the numerous authorities cited we are satisfied that 3 years substantially exceeds the general level of sentences for this class of offence involving similar sums of money albeit no discount falls to be made for a plea of guilty.

5. We allow the application for leave to appeal against sentence. We treat this as the hearing of the appeal and for 3 years will be substituted 18 months imprisonment.