The Queen v. Leung Wing Kwok, Michael and Another

CACC000176/1991

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Coram: Hon. Sir T.L. Yang, Chief Justice, Sir Derek Cons, V.P., & Mortimer., J.

Date of hearing: 4th August 1992

Date of delivery of judgment: 4th August 1992

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J U D G M E N T

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Sir Derek Cons, V.P., delivered the judgment of the Court:

1. Michael Leung Wing Kwok, the 2nd defendant below, was on the 25th March last year convicted by Judge Chua after a long trial in the District Court^-of three charges of conspiracy to defraud, one of furnishing false information dishonestly with a view to gain and one of doing an act tending and intended to pervert the course of public justice. The sentences passed on each of the charges were ordered to run concurrently, the maximum being four-and-a-half years, imposed for one of the conspiracy charges, charge 5. Soon after conviction the 2nd defendant lodged applications to appeal against all his convictions and the sentences passed thereon. Today all those applications stand abandoned, with the exception of an application for leave to appeal against sentence on charge 5.

2. The charges arose from a series of frauds upon a finance company which the 2nd defendant perpetrated through the firm he was running and with the help of a man inside the finance company. Charge 5 related to false applications in relation to portable telephones. Some of the applications were genuine in the sense that there were persons wanting to purchase portable telephones by way of hire purchase but it was quite clear from the evidence, and the judge so found, that the 2nd defendant had no intention of ever providing those persons with the telephones for which he was submitting applications.

3. The other dishonesty charges related to, in one instance, a real BMW and in another, an imaginary BMW. The charge of doing an act tending and intended to pervert the course of public justice arose when the defendant persuaded one of the persons, whose name and documents he had used in the false applications, not to provide information to the police.

4. In giving her reasons for sentence the judge castigated the 2nd defendant as being the most serious offender in that it was he who thought up the various frauds and tempted the others to join in. Today the 2nd defendant attempted to persuade us that that was not so, that the inside the finance company was more important than he because, as the judge observed, the frauds could not have been carried out without the help of an inside man. However, it is equally true, and more important, that the frauds would not have been carried out at all if the 2nd defendant had not initiated them.

5. The 2nd defendant is aged 34. He is married. He persuaded his wife to take part in the frauds to some extent, with the result that she is now serving a two-year period of imprisonment. He has a daughter aged four-and-a-half, now being looked after by other members of the family. He has a clear record, as the judge observed below, but she could find no other mitigating factors. Indeed there are none. The defendant has today expressed considerable remorse, but the expression comes too late to be effective. Taking the offences of which he was convicted as a whole it seems to us that a total of four-and-a-half years' imprisonment is in no way excessive. His application for leave to appeal against sentence on charge 5 is, as are all his other applications, dismissed.

6. David Leung Man Ho, the 3rd defendant below and the inside man we mentioned a moment ago, was convicted on the same count of conspiracy, i.e. charge 5, and of furnishing false information in relation to the real BMW. Concurrent sentences were imposed upon him as well, that on the conspiracy charge being four years and three months. It would seem that his only financial reward was a sum of $23,500. Against that he was in a position of trust and the company lost at least $150,000.

7. He is aged 29 years and also married. He has a baby son who was born after he was convicted. He has a clear record. At the time of the trial he had a good job and was very well thought of by his employer who has the same opinion of him today. We understand from a letter read out to us that he is still willing to employ the 3rd defendant upon his release from prison.

8. Mr. Plowman, in the course of submissions which also referred to the family circumstances of the 3rd defendant, has argued that with regard to sentence the judge below set her initial sights too high and was far too severe in comparison with the sentence passed upon the 2nd defendant. We accept the force of those arguments, particularly with regard to the significant difference between the role played by the 3rd defendant and that played by the 2nd defendant overall. For that reason the 3rd defendant's application for leave to appeal against sentence is allowed; we treat the hearing as that of the appeal itself and reduce the sentence on charge 3, i.e. the false information charge, from two years to one-and-a-half years and that on charge 5, the conspiracy charge, from four years and three months to three years. Both sentences are to run concurrently.

Representation:

A.E. Schapel, Crown Prosecutor for the respondent

Leung Wing Kwok, Michael, D2 in person

Gary Plowman (M/s Ip & Willis) for D3