R. v. LEUNG CHIU TIN

IN THE COURT OF APPEAL

1996, No. 228
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. On 10 April 1996 the applicant was convicted of 15 offences - 12 of obtaining property by deception and three of theft - before Yeung, J. and a jury. He was sentenced to a total of 7 years imprisonment to be served consecutively with a period of 2½ years imprisonment already being served.

2. He applied for leave to appeal against both his convictions and his sentence but following counsel's advice, he did not pursue the application against his convictions which we have dismissed.

The facts

3. The offences concerned in the present application were committed between July 1993 and November 1994. The nine women victims of the deceptions parted with sums varying from $10,000 to $750,000. They worked in massage parlours or as hostesses in night-clubs. He entered into a sexual relationship with most of them before using various pretexts to obtain their money. The common deceptions he used were that he could arrange for the purchase of cheap gold after receiving advance of money, or that sums of money had been, or would be, paid into their bank accounts. He often produced forged cheques which were stolen from earlier victims. The theft counts concerned the use of bank cards and numbers also obtained from women.

4. The total sum involved in these offences was $3,183,000.

The sentence of 2½years already being served

5. It is necessary to put the present case into the context of two earlier cases in the District Court for which on 22 August 1995, His Honour Judge Jackson imposed 3½ years imprisonment. This was reduced to 2½ years imprisonment on 6 February 1996 by the Court of Appeal because the applicant had been given insufficient discount for the considerable information and assistance which he had provided to the police. (See R. v. Leung Chiu Tin 1995 No. 581 (Criminal) CA Unreported 6 February 1996)

The chronology

6. The whole chronology of the offences concerned in the two District Court cases and in the present indictment is as follows:

7. In summary, between 10 February 1992 and 23 November 1994 the applicant committed one offence of blackmail, four offences of theft and 18 offences of obtaining money by deception involving a total of $5,510,000. The 15 offences in the instant case were all committed when on bail for similar offences concerning women.

This application

8. When Yeung, J. came to sentence the applicant on 10 April 1996, he was already serving the sentence of 2½ years in respect of the two District Court cases. Yeung, J. did not specify a starting point but having considered the serious nature of these persistent offences and the necessity to deter them, he continued:

"I have taken into consideration the nature of the charges, the background of this case, your previous record and everything your counsel has urged upon this court. I have also taken into consideration the assistance you have given to the police in connection with other matters, in connection with which a confidential report has been supplied to this court. So it's also fair to say that for that particular matter you have already been given a discount in connection with the District Court cases."

9. He then imposed a total of 7 years to be served consecutively with the 2½ years already being served on the basis that:

"I see no reason not to order sentence to run consecutively to the sentence that you are now presently serving when the present offences were, in fact, committed while you were on bail in respect of those other sentences."

10. The judge gave the applicant some limited credit additional to that given by the Court of Appeal and Judge Jackson for the same assistance that had then been given to the authorities. For the whole course of conduct the applicant received a total sentence of 9½ years imprisonment.

Counsel's submissions

11. Mr Grounds, who appears for the applicant, takes three points:

(1) That the effective total sentence of 9½ years was manifestly too long.

(2) That the judge failed to give sufficient weight to the assistance the applicant had given to the police.

(3) That since his sentence in April 1996 the applicant has given further information concerning two armed robberies and he has persuaded another inmate of prison to offer potentially valuable information.

Neither of these latter matters has come to fruition but Mr Grounds suggests that they demonstrate continued willingness to cooperate.

The sentencing problem

12. The judge was presented with an unusual and difficult sentencing problem. It was necessary for him to take into account the undoubted gravity and persistency of the offences over a long period. They were committed when on bail and involved substantial loss to the victims who had no prospect of recovery. He had to consider the sentence already being served after the pleas of guilty before His Honour Judge Jackson. Finally, he had to give a proper discount for the substantial assistance given and achieve an appropriate overall sentence.

13. Although Yeung, J. was sentencing for only part of the series, it was submitted - and conceded - that the proper approach was for him to pass the total sentence which would have been proper had the whole series had been dealt with on the same occasion, bearing in mind that the two sets of offences were committed while the applicant was on bail for other similar offences.

Conclusion

14. The issue for this Court is whether the total sentence of 9½ years for the whole series of offences was either manifestly excessive or wrong in principle.

15. For the earlier District Court cases the applicant received a very substantial discount. The 7 years starting point had been reduced to 2½ years.

16. In reaching the appropriate sentence in this case, the applicant was entitled to credit for the assistance but in other respects the approach taken by Yeung, J. was necessarily and rightly different. The offences were serious and persistent, and the sentence had to be imposed after trial. Further, a deterrent element was justified. The total sentence of 7 years must have been reached only after a substantial discount had been given for the assistance because the starting point must have been in excess of 10 years. It is important to recognise that although the assistance given in this case has been very valuable - and is not to be minimised - the applicant cannot be characterised as a "supergrass" who, having pleaded guilty, proceeds to give evidence in a series of trials.

17. In considering whether to make the 7 years sentence concurrent or consecutive with the 2½ years already being served the judge did not, and, as we have already indicated, could not, ignore the fact that all the offences were committed on bail. He was justified in imposing consecutive sentences on this ground alone. Finally, he had to take into account the overall totality of 9½ years which, in all the circumstances, cannot be said to be manifestly excessive.

18. For these reasons, the application for leave to appeal against sentence is refused.

19. If the applicant continues to give valuable assistance, it will still be possible for him to petition for additional clemency.