HKSAR v. CHAN CHI MING AND ANOTHER

HCMA115/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.115 OF 2003

(ON APPEAL FROM WSCC 58 OF 2003)

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J U D G M E N T

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1. Both appellants appeal against sentence only. They were convicted on a joint charge of conspiracy to defraud contrary to Common Law and section 159C(6) of the Crimes Ordinance, Cap.200.

2. The facts of the case are relatively straightforward.

3. The 1st appellant a 47-year-old male and by occupation a self-employed electrician wished to obtain a bank loan in the amount of HK$20,000. He was unable to do so because of his self-employed status. Accordingly, he approached his friend the 2nd appellant a 48-year-old female for help. She had a male friend who operated a cleaning company and in some way obtained from that company three blank employee pay slips. Those pay slips were then falsified by the 2nd appellant with the knowledge of the 1st appellant so as to appear to evidence that the 1st appellant was an employee of that company.

4. The appellants then went to the Dah Sing Bank branch in Aberdeen and the 1st appellant made an application for a cash loan and submitted the three falsified pay slips in support of that application. Subsequently the bank asked the 1st appellant to submit a letter from the company certifying his employment. Such a letter was forged by the 1st appellant with the 2nd appellant's knowledge and a false chop was prepared by the 1st appellant and applied to that letter which was then submitted to the bank. In due course, the application was rejected. Accordingly, no money was lost by the bank.

5. The magistrate in arriving at his sentence proceeded on the basis that both appellants were equally culpable and that the 2nd appellant acted out of friendship and had no financial interest in the granting of any loan monies. In respect of each appellant, he took a starting point of sentence of six months' imprisonment and reduced it to four months' to reflect each appellant's guilty plea and clear record. Each appellant now says that sentence was too severe.

6. Both Mr MacKay and Mr Yu for each of the 1st and 2nd appellants advance similar arguments. Both argue that the magistrate in arriving at his sentence failed to give proper weight to the appellants clear records and to the facts of the case which they say were not of the most serious kind. Both Mr MacKay and Mr Yu argue that the magistrate should have given sufficient credit to each appellant for those reasons so as to allow him to consider the imposition of a community service order or some other non-custodial sentence.

7. In his Reasons for Sentence, the magistrate said :

" In sentencing the defendants I did not consider either of the 2 sentencing options proposed by Defence Counsel to be appropriate given the blatant dishonesty of the scheme hatched by D1 and D2 who were in my view equally culpable. This was not a case of D1 and D2 just putting their heads together to provide false information to DSB in an attempt to get the not insubstantial amount of money advanced to D1. This was a case where the participants were prepared to compile and submit false instruments to dupe DSB into making the cash advance. The case called for an immediate custodial sentence."

8. Mr Yu has provided me with two authorities R. v. Lau Kin Yu, HCMA 391 of 2002 and R. v. Wong Hing Wan, CACC 88 of 1998, which involve the imposition of suspended sentences in admittedly far more serious offences involving some millions of dollars and also involving schemes of fraud.

9. But I do not think that those cases are of particular help in deciding appropriate sentence for offences such as the present where very often not only the facts but also aspects of mitigation can vary greatly.

10. There is no doubt that the present offence involved considerable planning and endeavour. In attempting to carry this conspiracy into effect both appellants displayed a considerable degree of persistence.

11. The plan was effectively completed and it was for apparently its own reasons that the bank rejected the application resulting in the appellant's conspiracy not reaching fruition.

12. In my judgment, the magistrate was right to describe this as a blatant and dishonest scheme. He was right also to consider the falsification and outright forgery of the documentation presented to the bank as being a matter which aggravated the seriousness of the offence. The forgery of documents, particularly of those used in commercial transactions, is rightly considered to be serious.

13. Balancing that, both appellants are people of previous good character and the 2nd appellant may indeed have been a person of positive good character. Both are mature adults and have lived in Hong Kong for some considerable time.

14. It is generally true that wherever possible a court will strive to avoid imposing a sentence of deterrence upon a first offender. That is because it can be said of many mature first offenders particularly that their transgressions went against the grain of their previous lives.

15. In my judgment, the magistrate in this case may not have given sufficient weight to the good character of both appellants. He did impose a relatively brief sentence of imprisonment it is true, but as Bokhary JA said in Attorney General v. Ng Sai Man [1994] 1 HKCLR 151 :

"if it is not necessary to send a man to prison for very long, it may not be necessary to send him to prison at all".

16. In my judgment in the present case, the magistrate should have obtained a report as to the suitability of the appellants for community service. There is no doubt each of the present appellants fits the profile of an offender suitable for consideration for such an order as set out in R. v. Brown (1981) 3 Cr App Rep. 294.

[The appeal was then adjourned for the provision of a report as to whether each appellant was suitable for community service. Subsequently a favourable report was received in respect of each appellant and each appellant was sentenced to 140 hours of community service.]