THE QUEEN v. CHEUNG WAI LUN AND ANOTHER

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J U D G M E N T

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Penlington, J.A.:

1. This is the judgment of the Court.

2. These are applications for leave to appeal against sentences passed by His Honour Judge Roy in the District Court, the two applicants having pleaded guilty during the course of trial to an offence of dishonestly procuring the making of an entry in a record of a bank.

3. The 3 defendants, all of whom were in financial difficulty, were parties to a scheme to defraud the Yien Yieh Commercial Bank, D.2's employer, of $1,000,000. D.2 selected a customer who had funds available, obtained a cheque book application and a statement of the balance available. D.3, either through the services of a forger or by himself, forged the customer's signature on the application and obtained a book of cheques. One was written for $1,000,000 and again the signature was forged. D.1 then went to the Po Seng Bank and opened a savings account. The following day he and D.3 went to the Po Seng Bank and drew out $500,000, all of the cash available in the Bank, plus a cashiers order for a similar amount. That order was then exchanged for gold which was then sold. The money was distributed amongst the 3 defendants but it was not certain in what ratio. D.2 had pleaded guilty at an early stage and made restitution of $300,000. In a cautioned statement D.3 said he had kept $400,000, most of which was lost gambling. D.1 said he only received $30,000 but on the other defendants' statements and admissions that seems unlikely. In any event the Bank seems to have lost very near $700,000.

4. While D.2 pleaded guilty to the charge from the outset and made full restitution, D.1 and D.3 only changed their plea of guilty when their statements were admitted following a voir dire.

5. D.1 and D.2 each received a sentence of 2 years' imprisonment, that of D.2 however being suspended because of his early plea, showing what the judge considered to be genuine remorse, the full restitution, his loss of career, a clear record and his family circumstances. D.3 received 21/2 years, the judge finding that he was the mastermind of the scheme and D.1 2 years' imprisonment. Both of them have previous convictions, D.1 for perjury in 1983 when he was bound over and D.3 for robbery and related offences in 1974 when he was very young.

6. The trial judge has very carefully set out that the circumstances of D.2's offence which were, he thought, exceptional, so as to enable him to suspend the sentence although he was quite clearly aware that, as D.2 was employed by the bank which was defrauded and was therefore in a position of trust, a custodial sentence was almost inevitable and should be suspended only in such exceptional circumstances.

7. Nevertheless, certainly so far as D.1 is concerned, it is submitted that he has a sense of grievance because his sentence has not been similarly suspended, and counsel for him has spent most of the day arguing really that, the sentence on D.2 should not have been suspended because he, being the bank employee, was the key figure without whom the scheme could not have been started. He was in a position of trust and by down-playing his role in order to justify the suspension, the judge has, perhaps unwittingly, magnified the role played by D.1 who was the "leg man" and played no part in the planning, of the scheme. He also maintains that he only received $30,000.

8. Mr. Macrae for D.3 submits that the trial judge's reasons for sentence contain statements such as that "the scheme was proposed" by D.3 and that he was "the prime mover" of the offence which are not justified on the facts that were before him. Unfortunately there is some doubt as to exactly what those facts were. This may be because the sentencing took place on two different occasions and the two applicants changed their pleas during the course of the trial after their statements had been admitted. However there does not seem to have been a clear statement of fact agreed to by all parties on which the trial judge based his sentence. What he did have were the defendants' cautioned statements and a summary of facts which seems mainly to relate the part played by D.1.

9. The judge also called for probation reports as to both D.1 and D.3.

10. From the material before the trial judge we think that all three defendants played a substantial role in this offence. It was a joint enterprise and while possibly one or two may have played a slightly more important part, on the facts here it is difficult to meaningfully distinguish between the three of them and we consider each should have received the same sentence.

11. The sentence passed on D.2 was suspended on the particular factors in his case - full restitution was made by him of $300,000, no previous convictions of any sort and plea of guilty ab initio. That can not be said for either of these applicants. We do not consider that the judge has in any way inflated the role played by D.1 or D.3.

12. It is also a ground of appeal of both applicants that the sentences were in themselves manifestly excessive. This was a well thought out scheme to defraud a bank of $1,000,000 which succeeded, and only $300,000 has been recovered. D3 now says, through his counsel, that he did not actually forge the cheque or the application form but employed another person who was paid a large proportion of the money obtained. We do not consider that is a relevant factor in relation to sentence. We have been referred to authorities on levels of sentence for such frauds but each case must depend on its own facts and the background of each defendant which are infinitely variable. We do not consider the levels of sentence here to be in any way excessive and may even possibly have been lenient. However for the reasons, given we do not think D.3 should have received a longer sentence than D.1 or D.2.

13. The application of D.3 is granted. We treat today's hearing as the hearing of the appeal and his^. sentence will be reduced to one of 2 years' imprisonment.

14. The application of D.1 is refused.