R. v. Choi Sze Fai

CACC000192/1994

IN THE COURT OF APPEAL

1994, No. 192
(Criminal)

___________

___________

Coram : Hon Yang, C.J., Penlington, J.A. and Ryan, J.

Date of hearing : 31 March 1995

Date of judgment : 31 March 1995

__________________

J U D G M E N T

__________________

Hon Yang, C.J.:

1. This is the judgment of the court.

2. By this application the applicant seeks leave to appeal against conviction and sentence.

3. On 21 March 1994 he was convicted after trial by Judge Britton to 20 charges of theft, eight charges of uttering a forged document and one charge of doing acts tending and intended to prevent the course of public justice. He was thus convicted of 29 charges in all, divided into three groups.

4. For the first group of 20 charges, he was sentenced to concurrent terms of imprisonment of five years on each charge. For the second group of eight charges he was sentenced to concurrent terms of two years' imprisonment. Those sentences were to run concurrently with the five years in the first group of charges.

5. For the single charge in the third group, a sentence of three and a half years' imprisonment was passed, the two and a half years of that term was to run concurrently with the earlier sentences but the remaining one year was to run consecutively to the other sentences.

6. The totality of sentences was therefore six years.

7. The applicant's homemade grounds of appeal against conviction comprise 25 main headings, under which are 197 complaints relating to the charges of which he was convicted.

8. His written submission, dated 20 March 1995, covers 158 pages.

9. His appeal against sentences makes three points: (1) the sentences are manifestly excessive; (2) by comparison with other cases, the sentences are too high and (3) the court has no jurisdiction to pass a sentence of imprisonment which goes beyond 30 June 1997.

10. We do not propose to repeat the applicant's grounds of appeal or his written submission, save to say that his argument is that the charges against him are "ultra vires, erroneous, unsafe or unsatisfactory". He further contends that there was no evidence to support many of the learned trial judge's findings of fact, that the judge had failed to consider certain matters, etc.

11. We have read the Reasons for Verdict, wherein the judge summarised the evidence fully, fairly and succinctly. It is clear that he had given careful considerations to the issues before him.

12. The applicant did not give evidence.

13. We have also read the Reasons for Sentence which takes into consideration all the relevant factors.

14. Put briefly, the prosecution case against the applicant is as follows.

15. The applicant was articled to a firm of solicitor from June 1988 to June 1991. The firm was Leong, Lam & Co ("LL & Co"). While in that firm's employ, the applicant embezzled monies belonging to the firm or their clients and agents. The way the applicant operated was by creating a number of business registrations which corresponded to LL & Co, their clients, agents and such barristers as were engaged by that firm. With these business registrations, he was able to open a number of bank accounts ("the false accounts") and direct payments by cheques and cashier's orders intended for LL & Co or their clients, agents and barristers to the false accounts, from which he then made payments to his own personal accounts. While conducting litigation for a lay client of LL & Co, by the name of Tsui Lap Lung, the applicant directed payment made under court order for Mr Tsui to his own account and obtained further additional payments from him for false inflated counsel's fees. Subsequent to his leaving LL & Co the applicant sought to maintain his overdraft facilities with the Hong Kong and Shanghai Bank by a dishonest misrepresentation that he had been offered employment by other solicitors' firms; he did this by using two forged letters purporting to be supplied by the firms of solicitors. When his activities were uncovered by the Independent Commission Against Corruption the applicant made attempts to persuade two prosecution witnesses, Tsui Lap Lung and Chan Chun Mo, not to give evidence against him. As regards Tsui Lap Lung those attempts included threats of violence which greatly frightened Mr Tsui and his wife.

16. The Crown alleges that he had diverted some $1.6 million into the false accounts.

17. The bulk of documentary evidence against the applicant was not challenged. And the judge accepted the evidence of all the prosecution witnesses as true.

18. We have considered the applicant's Grounds of Appeal and his written submissions. We have also heard his oral submission this morning. There is nothing in any of the Grounds of Appeal. The judge has dealt with the evidence, which was overwhelming, in an exemplary manner. The application for leave to appeal against conviction is therefor dismissed.

19. As to sentence, the applicant added a further point that full restitution had been made but we are of the view that the judge was right in giving little consideration to that factor because restitution was made at the very last minute. The sentences, in our view, were entirely proper. The application for leave to appeal against sentences is also dismissed.

Representation:

Applicant - in person

Mr David Fitzpatrick, on fiat for Crown/Respondent