THE QUEEN v. FU CHI-PING

IN THE COURT OF APPEAL

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JUDGMENT

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McMullin, V.-P. :

1. The applicant, FU Chi-ping, was convicted in the District Court on his own plea upon two charges of forgery and two linked charges of obtaining money by deception. He received in respect of the first count, forgery, a sentence of three years' imprisonment and two years concurrent on the linked count of obtaining money by deception. The second pair of counts relating to a separate occasion attracted sentences of one year for forgery consecutive to the 3-year sentence and nine months on the linked obtaining count to run concurrently with the other sentences. In total four years. He now applies for leave to appeal against those sentences.

2. The circumstances disclose a blatant and serious fraud. The applicant has a brother, FU Yiu-chung who owns some house property. The applicant was approached by a Madam Tse who herself was a dealer in real estate and was having some financial difficulty. She was put in touch with him by other people and she asked him to help her to raise some money. He did so by purloining the deed to house property which was in the possession of his brother and by using that deed to obtain a loan of $200,000 in October 1981. For this purpose he signed a deed of mortgage in the name of his brother. That constitutes the substance of the first forgery charge.

3. The deal was concluded in a solicitor's office. The applicant had borrowed his brother's identity card which was examined by the solicitor but apparently the likeness was sufficiently good to pass muster.

4. Of that sum of $200,000 a sum slightly less than $150,000 was then given by the applicant to Madam Tse.

5. On the same occasion she was called into the solicitor's office, having been outside during the earlier part of the proceedings, and was asked to sign a promissory note in which she undertook to repay to the applicant the sum of $200,000. The note states a rate of 2% interest per month which corresponds with the rate of interest referred to in the bogus mortgage deed.

6. Madam Tse's business evidently did not prosper after that because she again found herself in need of cash. This brought her again to the applicant who once again by using his brother's deed and by presenting himself in the same way as before at the same solicitor's office obtained a further loan which purported to be charged upon his brother's property. This loan was for $50,000. This sum, it would appear, was paid in whole to Madam Tse.

7. None of these moneys have been repaid to the purported mortgagee, the person who had advanced the money, called CHAN Kwai-hung. He had left the carriage of the entire matter in the hands of the solicitors.

8. When after some two years the capital had not been repaid, nor had any interest been repaid, the solicitors got in touch with the applicant's brother to demand repayment. The fraud then came to light and the applicant was arrested. He was charged and pleaded guilty receiving the sentences which I have described above.

9. On the hearing of the appeal counsel for the applicant asks us to say that the totality of sentence is too high in relation to the nature of the offences themselves. He asks us to say that an insufficient discount has been given by the District Judge in relation to the plea of guilty. He points out that this was not a large scale commercial fraud. He suggests that there was not any absence of intent to repay on the part of the applicant and he points out that no benefit was received by the applicant at least in relation to the second sum advanced upon the bogus documents.

10. Sofaras the absence of intent to repay is concerned we have to say that there is no substance in that ground since throughout it must have been evident to the applicant, who was unemployed at the time, that he himself, of his own resources, would not be able to repay the man who had been cheated in this way and he was relying wholly upon a woman who was herself in considerable financial difficulty.

11. The applicant has a clear record. He is 47 years of age. He was a clerk in a garment factory up to the middle of 1981 when he became unemployed. He has four children aged between 14 and 20 years of age, they are said to be all still schooling.

12. None of the money has been repaid and on the terms on which it was advanced it is within the right of the person who advanced the money to insist upon the payment of the interest stated in the "deeds".

13. Counsel argues that the actual sums obtained total $250,000 and he suggests that this must be regarded as the limit of the monetary substance of the fraud. We cannot take that view. Obviously the question of interest may be pursued by CHAN Kwai-hung. He has been, to that extent, disabled from turning to productive use property which he had advanced on the understanding that the documents upon which the loans were made were genuine documents.

14. We would not wish to say anything which would derogate from the gravity of these offences, two separate occasions of serious fraud.

15. Counsel however has directed our attention to the case of CHEUNG Bing-lit v. The Queen⁽¹⁾, heard by the Court of Appeal in 1979 in which the appellant had pleaded guilty to six counts of forgery and six counts of obtaining pecuniary advantage by deception with 17 other linked pairs of offences being taken into consideration. He was a businessman who had got himself into difficulties. He was a partner in a garment factory which dealt in goods for export. In order to obtain overdraft facilities, which he would not otherwise have been able to obtain, he forged dock receipts and invoices and presented these to a bank to obtain credit for the business. In this way some one and a half million dollars was obtained of which eventually about half a million was repaid. In actual monetary terms that is, of course, a considerably graver case than the present. Sentences totalling 4 years' imprisonment were reduced upon appeal to a total of 3 years. When delivering judgment, the learned Chief Justice said:

16. This is not a case in which the defendant had surrendered himself but it is true that he did co-operate fully with the police once he had been discovered.

17. Taking into account the facts which I have described and taking what guidance we can from the authority quoted to us, we think that it may be that in the present case the District Judge did not give quite sufficient value to the plea of guilty. For that reason we propose to grant the application. Treating the hearing of the application as the hearing of the appeal we make the following alteration in the sentences imposed. For the sentence of three years upon the first count we will substitute a sentence of two years; all the other sentences will remain as imposed in the court below. This therefore reduces the totality to 3 years.

(1)    Cr. App. No. 240 of 1979