ATTORNEY GENERAL v. CHON SIU WAH

IN THE COURT OF APPEAL

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JUDGMENT

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Li, V.-P.:

1. This is an application for review of sentence. It has given us some anxiety. The respondent was convicted of twenty-three counts of obtaining property by deception and three counts of evasion of financial liability. These arose from two series of transactions.

2. In the months between September and December 1984, she was responsible for the running of the New Vadra Company. In those few months the company under her management obtained, on 12 occasions, goods by giving post-dated cheques which were proved to be worthless. When the post-dated cheques on some occasions were about to mature she substituted further post-dated cheques. There were a total of 12 occasions. The amount involved was about $240,000.

3. A year later, between August and November 1985, she was in the management of the Europe-Asia Industry Company. She also obtained goods by post-dated cheques to the value of some $77,000 by the same means. These were subject matter of 14 charges.

4. Such were the facts against her. There was evidence that she was not the only person in the management of these two companies. She was running it with the assistance or at the instigation of at least one other person. In the first group of offences she was assisted and instigated by one Madam Wong. In the second instance she was assisted by a man Chung who eventually gave evidence against her. The judge in his Reasons for Verdict labelled Chung as an accomplice and said that he was an equally guilty and knowing participant to this fraud. It is always distasteful to find that a person who is equally guilty if not more guilty than the accused, getting away scot-free to give evidence for the Crown. Having said that, we recognize that there might be cases of necessity although that this practice becoming more and more frequent.

5. The reason for this application is that the sentence of one year imprisonment suspended for two years concurrently in respect of all twenty-six counts is manifestly inadequate and wrong in principle. It is wrong in principle in the sense that the two companies were registered at different times and different years. So that there were two sets of separate offences. The sentences should be consecutive rather than concurrent. Also because it was a systematic large scale fraud the sentences should not have been suspended.

6. A series of cases have been cited before us in support. In R v Blancaflor ⁽¹⁾ the accused pleaded guilty to 6 charges of obtaining goods by deception. She was sentenced to 21 months imprisonment which was upheld on appeal.

7. In Ho Chi-shing v R ⁽²⁾ the accused pleaded guilty to 17 charges of obtaining goods by deception and was sentenced to a total of 5½ years. This Court said that there was nothing wrong with that sentence except that as a matter of totality a sentence of 3 years imprisonment was appropriate. The sentence was accordingly reduced it to 3 years.

8. In R v Chow Yung ⁽³⁾ the accused pleaded guilty to 24 charges of the similar offence involving some $407,000 and this Court upheld a sentence of 3 years imprisonment as appropriate.

9. Every case must be judged on its own merit. In all the aforesaid cases the accused were mature persons. They were persons who stood to gain for himself. They were acting on their own initiative without any instigation by anyone. Recently we had a case of a mature and educated person who was convicted of theft in his own plea of over $5 million worth of securities. He was sentenced to 18 months. I cite that case as a variation of sentences, depending on the discretion of the trial judge and the circumstances and personal background. It is true on the face of it one year's suspended sentence is inadequate in this instance.

10. Learned counsel for the respondent, however, made an impassionate plea on behalf of the respondent. He made full use, as he was quite proper to do so, of the probation officer's report which was a good report. Apparently the personal background of the respondent was such that at the age of 14 she worked as a factory girl. When she was barely 21 she met this man Chung who was the accomplice who gave evidence against her. She was induced to be his mistress with a promise to marriage. There was nothing to contradict the evidence that Chung, who in the second series of offences, was the prime mover.

11. It is contended that despite all these series of frauds she had nothing to gain. She was grossly misguided. She had agreed to "a large chunk of facts" which amounted to pleading guilty. Though she knowingly participated in these offences, she was foolish to be made use of by others.

12. When a judge considers sentence, he is entitled to take into consideration the whole circumstances of the offence. In the course of giving his Reasons for Sentence the judge said:

The judge acknowledged and accepted that though guilty she was not the prime mover and she was being foolish to be misled into the crime.

13. We have considered this application with grave anxiety. We have come to the conclusion that by and large a fraud of this magnitude and system on two separate occasions even though the respondent had gained nothing for herself, this court would not interfere, upon conviction occurred after trial, with a sentence of 5 years. However, we take into consideration her secondary role in the offences, her very young age and her previous good character and clear record, and that she was misled because of a false promise of marriage and love.

14. In these circumstances we would consider that three years would be appropriate. We also consider that she had admitted a lot of important facts amounting to pleading guilty. This being a review, we come to the conclusion that one year's imprisonment is appropriate. We are of the opinion that however sympathic the one year's imprisonment should be an immediate custodial sentence.

15. For these reasons we allow this application. The sentences are reviewed, the suspended sentences set aside and in lieu thereof we impose a concurrent sentence of one year's imprisonment in respect of all the offences.

16. In doing this we have not lost sight of the full court's decision. In the case of Lui Shu-tong v R ⁽⁴⁾ the individual offences and the appropriate sentences were secutive. However, we come to the conclusion that in a case like this a totality of the sentences of one year is appropriate and we so order.

(1)    Cr. App. 294/86

(2)    Cr. App. 215/82

(3)    Cr. App. 139/85

(4)    1961 HKLR 129