THE QUEEN v. LAM TAI-KIT

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JUDGMENT

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Yang, J.A.:

1. This is an application for leave to appeal against sentence.

2. The facts as agreed in the court below were these.  The Applicant was an employee of a company called "Freddie Trading and Associate" ("Freddie"). In May 1985 Freddie entered into an agreement with a company in Canton called the "Dong Fang Trading Corporation" whereby Freddie would supply Dong Fang with 250,000 ball point pens. Dong Fang was to make payment by means of an irrevocable letter of credit.

3. On the 20th May 1985, Dong Fang opened a letter of credit in the sum of HK$1,095,600, covering a consignment of 83,000 dozen Zebra ball point pens. A few days later the letter of credit reached Freddie, and still a few days later several minor amendments were made to the terms of the letter of credit. On the 28th May the Applicant collected the amended letter of credit.

4. It was sometime during the end of May that the proprietor of Freddie informed the Applicant that the ball point pens were not available for shipment to China. In order to deceive their customers in Canton Freddie's proprietor instructed his staff to purchase 334 empty cartons and a large quantity of wastepaper. During the night of the 31st May 1985 Freddie's staff together with the Applicant himself packed those empty cartons with wastepaper, and on the following morning the sealed cartons of wastepaper were solemnly loaded on to a China bound vessel under the supervision of the Applicant and consigned to Dong Fang.

5. On the 1st June the letter of credit was presented by Freddie with supporting documents to the Bank of Credit and Commerce for collection. The supporting documents included false commercial invoices, false certificates of quality and false packing lists.

6. On the 6th June the Bank of China paid the proceeds of the letter of credit, namely HK$1,090,458 to the Bank of Credit and Commerce. The amount was duly credited into Freddie's account. On that same day, the proprietor of Freddie paid a commission of $16,000 to the Applicant. Naturally when the consignment arrived at Dong Fang it was discovered that what they were sent were not ball point pens but wastepaper.

7. It was an admitted fact that the whole of the money paid to Freddie under the letter of credit was recovered by Dong Fang through civil proceedings. It was also common ground that after the discovery of the-deception the Applicant went to China to try to make some sort of explanation to Dong Fang about what had happened. He was detained there for 8 months and was obliged to pay HK$100,000 as a penalty and compensation before he was allowed to leave.

8. The proprietor of Freddie however was somewhere in Europe.

9. Today's argument centred on two main issues. One is that the judge failed to take sufficient consideration of the mitigating factors that were put before him at the trial. We do not propose to discuss these matters in detail save to say that the judge in his Reasons for Verdict alluded to them and it is clear that he must have born all these mitigating factors in mind when he came to assess the sentence to be imposed. A number of cases were cited to show that even a mastermind (and the Applicant in this case has not been described as a mastermind) in a case of fraud received sentences of something like 2 or 3 years only. We do not find these cases particularly helpful in that the facts of these cases are very different from ours. Amore substantial ground is that in a case against But Yu Pui, No. 590 of 1985 (Criminal), the Defendant there was a coconspirator of this Defendant in our case and the facts against But were exactly the same as here. The roles played by these men were very similar and the rewards they received were the same. But was sentenced some 2 months before this Applicant. The sentence imposed upon him was that of 3 months to be suspended for 12 months, and he was also fined a sum of $96,000. The gross disparity between these two sets of sentences is obvious. If this present case had stood on its own, we would not have thought that a sentence of 2?years imposed upon him in the circumstances was a day too long. But in the light of But's case which formed part and parcel of the same transaction in this present case, we feel constrained to take into account the inevitable and understandable sense of grievance of this Applicant if the sentence on him were to stand. It is the extremely lenient sentence in But's case that compels us to reduce the sentence in this case.

10. The application is treated as an appeal, the appeal is allowed, the sentence of 2½ years is quashed and in substitution we impose a sentence of 1 year.