R v. CHOW TAT MING

IN THE COURT OF APPEAL

1996, No.108
(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant pleaded not guilty to ten offences of obtaining property by deception and of five offences of theft. He was found guilty on all charges after trial before H.H. Judge Chua in the District Court and was sentenced to imprisonment for four years and three months on each charge with the sentences ordered to be concurrent. He now appeals against sentence.

2. The facts as opened by the Crown stated that the applicant was the sole proprietor of the Chastity Jewellery Company which dealt in wholesale diamonds. He opened a current account in the name of Chastity Jewellery Company with the Hang Seng Bank on 29th January 1991. The Hang Seng Bank sent three warning letters dated 4th December 1991, 9th January 1992 and 7th April 1992 to the defendant saying that his account would be closed on 14th April because of his bad record relating to cheques which were either issued and dishonoured because of insufficient funds or because no previous arrangements had been made to meet them. The account was closed by the bank on 14th April and the defendant was duly informed by letter on 16th April.

3. In the period between January and April 1992, the defendant had obtained 2,944.1 carats of diamond valued at HK$15m from various jewellery trading companies by issuing 52 cheques which were dishonoured. The opening went on to state:

"The present offences committed by the defendant were only sample charges laid against him."

We were left in some degree of disquiet by this statement. It seems clear that throughout the trial reference was made to 52 cheques despite the fact that only 15 charges involving 15 cheques were laid.

4. The trial judge when sentencing said:

"The defendant who had a clear record is now forty-six years old. He has been convicted after a trial of fifteen charges, the first ten are charges of obtaining property by deception, the last five are theft charges. These are sample charges. It is not denied the defendant had in fact issued fifty-two dishonoured cheques between January 1992 and April 1992.

The judge went on:

"I see nothing in the circumstances to mitigate sentence. The total amount lost by the victims is $15,239,414.00; on the 15 charges it is $6,850,689.20.

I think the appropriate sentence in this case is one I would fix globally, four years three months. That is the sentence I impose on all charges one to fifteen all to run concurrently."

5. The grounds of appeal, argued today by Mr. McLanachan, are that the trial judge failed to take any or due account of the applicant's good character. We can dispose quickly of that as we are satisfied that the judge having at the outset, as indicated above, stated that the applicant had a good character must be taken to have had that in mind when sentencing.

6. It is then argued that the judge failed to give the applicant any credit for his preparedness to admit much of the Crown case obviating the need to call a large number of witnesses. The issue before the court was, because of this, a simple one - Was there any dishonesty on the part of the applicant? It is true that the trial judge made no mention of this when sentencing.

7. It is the third ground that the trial judge failed to give credit as mitigation for to the fact that the offences arose because of a failure of business and were not a deliberate "long firm fraud". This ground was, in the event, not pursued in argument by Mr. McLanachan.

8. The offences charged were committed in February 1992. They were clearly calculated frauds which involved large sums of money. The applicant on 14th April 1992 fled to Taiwan and he was in the process of fleeing again, his whereabouts having been discovered, when he was arrested on 17th June 1995 as he was leaving Taiwan. It is correct, we are satisfied, to say that he showed no remorse and that he made no restitution or offer of restitution.

9. We are, however, disturbed by the fact that the offences charged were stated to be "sample charges" and that sentence was, it seems, although this is not entirely clear, assessed by the judge upon that basis. As regards "sample charges" where there has been a plea of guilty we are satisfied that the proper approach is that expressed by Mustill J. (as he then was) in the case of R. v. McKenzie [1984] 6 Cr.App.R. (S) 99. In that matter the applicant was indicted on seven counts of forgery and similar offences. The prosecution claimed that the offences charges was specimen of a series of similar fraudulent dealings involving ￡ 11,000 and the applicant was invited to admit a total of 240 further offences and to ask the court to take them into consideration but he refused to do so. It was argued in the Court of Appeal that the trial judge in imposing a sentence of 4 1/2 years' imprisonment must have given weight when assessing the gravity of the offences to those numerous other allegations which the defendant had refused to accept. This was, in the view of Mustill J., an inappropriate course. The applicant should have been sentenced for the offences in respect of which he was convicted leaving it to the authorities if they thought fit to prosecute him on a subsequent occasion in respect of the outstanding matters. This approach has been followed in a number of other cases. We are aware of the other view which is that, in such circumstances, similar offences, even it not admitted, can be taken into account when sentencing. We are, however, satisfied that the correct approach is that expressed in R. v. McKenzie. That being so, the trial judge was wrong in principle in her approach to the sentence and it falls to this court to make its own assessment of sentence. We are satisfied, given the amount involved in the 15 offences and the criminality therein that five years would have been a proper starting point. We give weight to the previous good character of the applicant and to the fact that he did not put the Crown to full proof which very much shortened the trial. In all of the circumstances we are satisfied that a proper sentence would have been four years on each count with all sentences ordered to be concurrent.

10. We conclude simply by saying that we are satisfied that, although there is only three months difference between the sentence we impose and that imposed by the judge, such an order is a proper one. Once this court is satisfied that the assessment of the judge was wrong in principle, it is our duty, as we have said in the past, to make a fresh assessment and the applicant is entitled no matter how little the difference to be sentenced upon a proper basis.