|
CACC000059/1996
IN THE COURT OF APPEAL
1996, No 59
(Criminal)
| BETWEEN |
|
|
|
THE QUEEN |
|
|
|
|
|
AND |
|
|
|
|
|
YEE HING CHUNG |
|
-------------------
Coram: Litton, V.-P., Bokhary and Liu, JJ.A. in Court
Date of Hearing: 30 August 1996
Date of Judgment: 30 August 1996
----------------------
J U D G M E N T
-----------------------
Bokhary, J.A.:
1. This case comes to us from the District Court.
2. Three accused appeared before HH Judge Britton on one charge. The charge was of conspiracy to defraud. All three accused pleaded not guilty.
3. On November 27 last year, the judge convicted the 1st and 2nd accused, but acquitted the 3rd accused.
4. Sentencing took place on December 29 last year. The 1st accused, a man in his late 20's, was sentenced to three years and eight months' imprisonment; while the 2nd accused, a woman in her early 20's, was sentenced to one year's imprisonment.
5. Only the 1st accused (to whom we will now refer as "the applicant") is before us. He now seeks leave to appeal against sentence only, having abandoned his application for leave to appeal against conviction.
6. Shortly stated, the plot alleged by the prosecution and found proved beyond reasonable doubt by the judge was as follows.
7. An innocent couple, Mr Kam Ping-kwong and his wife Madam Man Kam-yin, put their Whampoa Garden flat on the letting market.
8. The applicant, posing as a Mr Wong Yue-sang and using a forged identity card in that name, became the tenant. He insisted upon and obtained photo-copies of Mr Kam and Madam Man's identity cards and of certain documents pertaining to the flat, such as rates and mortgage payment receipts.
9. Next, the flat was sold for $3.25 million to another innocent couple, Mr Chiu Sun and his wife Madam Tse Suet-fong. That was achieved by an unknown conspirator posing as Mr Kam, the applicant posing as Mr Kam's brother and the 2nd accused posing as Madam Man.
10. The unknown conspirator and the 2nd accused used forged identity cards in the names of Mr Kam and Madam Man respectively.
11. The applicant played an active role in putting the deal together.
12. Innocent property agents, solicitors and banks were duped in the course of the carrying out of the plot. And the conspirators netted over $2 million.
13. In passing sentence, the judge accepted that the applicant was not the "mastermind" behind the plot. If he had been, the judge said, a starting point of five years' imprisonment would have been appropriate. As it was, the judge took the view that the applicant had played a central role in the fraud and had been in it, as the judge put it, "right up to his neck".
14. All things considered, the judge took a starting point of four years' imprisonment, and gave a discount of four months for the applicant's previous good character.
15. That is how the sentence of three years' and eight months' imprisonment passed upon him was reached.
16. One ground of appeal - which has two and a half or possibly three prongs has been filed. It reads as follows:
" that the sentence imposed upon the applicant was in all the circumstances manifestly excessive because -
(a) the Learned Trial Judge failed to take full account and place sufficient weight upon the fact that the Appellant had a clear record see Reasons for Sentence, pp. 93 - 95 at p. 94M
(b) R. v. Lee Kun Wai & Chan Sui Ming, App. For Review No. 6 of 1992
(c) R. v. Wong Hung Bin, Crim App. No. 579 of 1998
17. Item (a) is intelligible in itself. But the other two items obviously need some explanation.
18. By reference to the case named in item (b), the point urged is that the present case, unlike that one, did not involve a betrayal of trust, and that the judge did not take that fact sufficiently into account in the applicant's favour.
19. The point made by reference to the case named in item (c) repeats the point as to betrayal of trust, and also makes the points that the present case involves only one charge unlike that one which involved seven, and involves less money than that case involved.
20. As to the two cases cited, all that has to be said is that each case turns ultimately on the whole of its own facts and circumstances.
21. And as far as the applicant's previous good character is concerned, we are not at all persuaded that the judge failed to give the applicant sufficient credit for that.
22. In our view, the judge's reasons are not flawed, and his result is justified.
23. This application for leave to appeal against sentence is dismissed.
| (Henry Litton) |
(K Bokhary) |
(B Liu) |
| Vice President |
Justice of Appeal |
Justice of Appeal |
Representation:
Mr Giles Surman (instructed by M/s Ivan Tang & Co) for the applicant
Mr A A Bruce QC & Mr David Leung (of the Attorney General's Chambers) for the respondent
|