R. v. WONG SHU KAN

1993, NO. AR 13

IN THE SUPREME COURT OF APPEAL

(Criminal Jurisdiction)

Application for Review

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J U D G M E N T

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Hon Yang, C.J.:

1. This is the Attorney General's application for leave to review sentence. The Respondent, WONG Shu-kan, was convicted after trial to four charges of fraud. Charge 1 alleged fraud committed in May 1992 against the Lau On Company Limited. Charge 3 alleged that on 6 June 1992 he committed a similar fraud upon the Victoria Consultant Services. These frauds were in respect of cheques paid by these two companies as lessors to the Respondent, and the cheques were subsequently dishonoured. The amount of the two cheques came to HK$65,488. The two remaining charges, Charges 4 and 5, were in respect of frauds committed against the same victim, namely, Katsuki Company Limited. These occurred on 19 and 26 June 1992 respectively, and the sum involved came to US$85,500. The Katsuki Company Limited was paid for its computer integrated circuits with cheques given by the Respondent, and these were also dishonoured. The total amount of money thus defrauded was therefore in the region of HK$685,000.

2. In assessing the appropriate sentence for this case, the learned trial judge, Deputy Judge Livesey, found that the Respondent was not a main party to the deceptions, and that he was paid between HK$8,000 to HK$10,000 per month simply as a signatory to the cheques which were eventually dishonoured. The judge observed that the Respondent was paid a lot of money for no real work, and that he knew that substantial deceptions were going to be carried out. The judge also found that he knew the cheques he was issuing were not going to be honoured, or, at best, that he could not have cared less whether they were or not. Quite clearly, the Respondent, as the judge found, was a minor, but an essential part of the group of persons who perpetrated the deceptions.

3. On his personal background, the judge took into consideration that the Respondent was but 21 years of age at the time of the offences. He had been before the court on three separate occasions. In 1990 he was sentenced to a Detention Centre for blackmail. The judge found that the Respondent was not criminally immature, but might not have appreciated that he was taking most of the risk for the least reward in the circumstances. In imposing the concurrent sentences of six months' imprisonment on each charge, the judge noted that serial frauds attract higher sentences than one-off frauds. Whilst the amount of money defrauded was large, the amount which the Respondent benefited was small. She further took into consideration the fact that one of the more involved conspirators was called as a prosecution witness.

4. In our view, the offences were quite separate and distinct. There were four charges involving three different victims. It is not a case where the one transaction rule should apply. In our judgment, though the judge had acknowledged that where a series of frauds were committed, the sentence imposed should be higher than a situation where there was a one-off fraud, the concurrent sentences of six months' imprisonment on each charge are manifestly inadequate. We confirm what was said by this Court in The Queen v. Helen YEUNG Mei, CA 65/1988, and are of the view that the judge should not have taken as a mitigating factor the fact that a co-conspirator who was more deeply involved in the deceptions was called as a prosecution witness.

5. Having regard to the authorities, that the Respondent was convicted after trial and that it was a series of offences committed over a period of two months, we are of the view that the appropriate sentence should be one of six months' imprisonment on each charge and, taking into account the totality principle, we think the sentences on the first two charges, i.e., Charges 1 and 3, should run consecutively, as two different victims were involved. We would order the sentences on Charges 4 and 5 to run concurrently, but consecutively to the sentences under Charges 1 and 3. The totality would therefore be imprisonment for 18 months.

6. The application is therefore allowed to the extent already indicated.