Ho Chi-shing v. The Queen

CACC000215/1982

Appellant convicted 17 charges of obtaining pecuniary advantage by deception in form of dishonoured cheques for goods and 3 charges of obtaining property by deception for obtaining goods without payment - on evidence both forms of obtaining and deception in fact a series of actions comprising one fraudulent conduct - consecutive sentences in respect of two types of obtaining set aside and ordered to be concurrent sentences.

Between

Coram: McMullin, V.-P., Li, J.A., & Bewley, J.

Date: 25 May 1982

__________

JUDGMENT

__________

Li, J.A.:

1. The appellant was convicted of 17 charges of obtaining a pecuniary advantage by deception and a charges of obtaining property by deception on his own plea in February this year. For this he vas sentenced as follows: 13 months imprisonment each in respect of the 1st and 10th charge; 9 months imprisonment in respect of the 2nd, 5th, 7th, 8th, 16th, 17th and 20th charge; 18 months imprisonment in respect of the 3rd; 4th, 8th, 9th, 10th, 13th and 15th charge; 6 months imprisonment in respect of tic 11th charge; 10 months imprisonment in respect of the 12th charge; 3 years imprisonment in respect of the. With charge, and 2 1/2 years in respect of the 15th charge. The trial judge ordered that all sentences be concurrent except that of the 15th end the 16th charges. The sentences in respect of these two charges were ordered to he consecutive. In short, the judge sentenced the appellant to a total of 5 1/2 yeas. The appellant applied for leave to appeal against sentence on the 2nd of March this year, and leave was granted on the 29th of April.

2. The facts disclosed that between the 10th of April, 1980 and the 24th of July, 1980, the appellant Stained goods from various leather companies to the value of roll over $220,000 by deception in the sense that he paid for these goods by cheques which were subsequently dishonoured, well-knowing that he had not sufficient funds to meet them. The appellant was the sole proprietor of the Nqai Kwun Mandbag Company. He starter; business by 1978/79. His business was to make handbags from raw materials supplied to him by various leather merchants. He had two bank accounts to pay for his goods. All the cheques, the subject matter of the 17 charges, were issued in payment to leather merchants who supplied the appellant with raw materials for the manufacture of handbags. He failed to pay them. An then, in desperation, between the 19th of July and the 24th of July, 1980, he ordered 4 instalments of goods for which he did not even pay by cheque. That formed the subject ratter of the other 4 charges. The appellant disappeared oil the 24th of July, 1980 and he was located by exactly the sane date the following year, the 24th July, 1981.

3. Investigation took Mace and he was found that during the period between May and August, 1980, that is the period when he practiced his fraud, the highest figure in his account with one bank was 85,841,96. But by the 13th of August, 1980 that account vas reduced to zero. In the other account ha was overdrawn throughout the period, so that when he issued the cheques, the subject matter of the 17 charges, he should know that he had no chance of meeting his liabilities. Yet he ordered on four occasions goods within five days of his disappearance. The grounds of appeal as filed has no merit at all. They era that the appellant pleaded guilty, was cooperative with the police, had no previous record, and that he offered to pay a $20,000 downpayment and the balance by $1,200 per month. All these points had been put before the trial judge and were considered. Then it is said that the 2nd to the 9th charge and the 10th to the l3th charge were in fact two separate transactions only and not 3 occasions or 4 occasions respectively. That also was appreciated by the trial judge he ordered concurrent sentences in respect of all these offences.

4. Mr. Mackenzie-Ross said, this totality of 5 1/2  years far the fraud practice is manifestly excessive. There is no reason why the sentences on charges, 15th and 16th, should be made consecutive.

5. Learned counsel for the Crown quite fairly said that he cannot justify the consecutive sentences. He pints out that the order for consecutive sentences was made probably because the subject matter of the charges concerning obtaining of property occurred within a matter of 5 days before the disappearance of the appellant on the 24th of July, 1980. This is not apparent in the judgment or on record. However, reading the date of the charges and reading the summary of facts, one can observe that that was the case.

6. We are of the opinion that these charges, be it obtaining pecuniary advantage or obtaining property by deception, were in fact a series of actions comprising one fraudulent conduct it was the case of a business man, who failed in his business, refused to accept his failure and started to use other people's goods to attempt to refinance his business which eventually still failed. In desperation he obtained some more goods and disappeared.

7. We are of the opinion that albeit there were some slight difference in both charges, these were a series of actions of the sane fraud which occurred when the appellant found that he failed in business. For these reasons, we are of the opinion that there should he a concurrent sentence. We also feel that a totality of 3 years imprisonment is appropriate. To that extent, the appeal is allowed. The consecutive sentence order is set aside and all sentences imposed will run concurrently.

Representation:

Mr. Mackenzie-Ross (Y.K. Peon & Co.) for appellant

Mr. B. Moorfoot (Crown) for respondent