THE QUEEN v. CHAN TAT WAH

IN THE COURT OF APPEAL

CRIMINAL APPEAL NO. 239 OF 1986

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BETWEEN

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JUDGMENT

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Penlington, J.

1. This is an application for leave to appeal against sentence on five counts brought in the District Court. The 1st two related to two bogus jewellery companies which the applicant had set up for the sole purpose of attempting to defraud the Standard Chartered Bank by the use of forged sales receipts and claiming that these sales had been effected by the use of credit cards and to obtain money from the bank accordingly. These attempts did not succeed but the amount of money involved was substantial some $631,000. The 3rd charge and the 4th charge both related to another shop, Rainbow Fashions, which again the applicant had set up. It is not clear whether this was also done with the intention ab initio to defraud; the  judge below assumed this was not so, but that, because business was bad, it was then decided that again money would be obtained from the American Express Company on the basis of forged credit card documents. The 5th count relates to a conspiracy between this applicant and another man who was also charged with him, LEUNG Kam-pui, to carry out the defrauding of the American Express Company in relation to the Rainbow Fashions Shop and covers the 3rd and 4th counts. Those charges, we are told by Crown Counsel here, represented the let and final transactions of the conspiracy.

2. The applicant was sentenced to 3 years imprisonment on the first 2 charges, 2 years on the 3rd and 4th and 4 years on the 5th all concurrent. The first ground of appeal is that there is a substantial disparity between the sentence passed on this applicant and that passed on the other man, Leung, who received a 2 year suspended sentence in respect of charge 5. However, it is quite clear that having pleaded guilty following a voire dire and the statements made by both of them having been admitted, there were agreed facts placed before the Court by which it was bound. Those agreed facts, so far as Leung was concerned, said that he had played a minor role in this conspiracy and that was the only charge which he faced. While he had himself received the money from the bank; he had paid this over to this applicant and only received a few dollars each time for himself. The trial judge passed the suspended sentence on that basis. We see no reason to feel that was an improper sentence even if Leung may have been fortunate. This applicant, however, played a very substantial role in the whole five offences. He was doing it with his brother, who also apparently played a substantial role and on the basis of the facts which were agreed before the trial judge, we see no grounds for believing that there was a disparity between this sentence and that passed on Leung as to require that we should intervene.

3. The ground which is raised is that the applicant faced in relation to the Rainbow Fashions Shop, two substantive charges plus one of conspiracy. Where substantive charges and conspiracy charges both covering the same event are brought, the Crown should be called upon to elect on which it wishes to proceed and should only be allowed to proceed on all charges if the Court considers that the justice of the particular case so warrant. Practice Directions 1977. 2 AER 540.

4. This is not an appeal against conviction, but nevertheless we feel that here there does not seem to be any particular reason why there should have been substantive charges as that of conspiracy. That being so, on the facts of this case we think that the sentence passed for the conspirary charge should not exceeded that for the substantial charges and we will grant leave to appeal, treating this as the hearing of the appeal, and the sentence on the 5th charge, that of conspiracy, will be reduced to 2 years, the same as for the 3rd and 4th charges.

5. We have also been asked to consider the fact that the judge appeared to give no weight to the applicant's plea of guilty. This plead of guilty came at the end of voire dire when his long detailed statement had been admitted. That coupled with the substantial documentary evidence against him, meant that his conviction at that stage was inevitable. Under those circumstances very little credit could have been given, the plea having come so late.

6. The other ground was that the judge paid undue weight to the sentence of three years imposed on the applicant's brother. We do not consider there was any basis for that complaint.