Philip Yung Ka-lup v. The Queen
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CACC000022/1978
Coram: Briggs, C.J., Huggins & Pickering, JJ.A. Date of Judgment: 1st May, 1978. ----------------- JUDGMENT ----------------- 1. The appellant was convicted of three counts of uttering a forged document and sentenced to three terms of imprisonment of eighteen months, the sentences to be served concurrently. Originally, there was an appeal against conviction and sentence. The appeal against conviction has been abandoned. We are here concerned with the appeal against sentence. 2. The appellant incorporated the Ka Lup International Company in May 1975. All the shares were held by himself and his wife. A few months later a company called Herald International offered the Ka Lup International Company the sole agency to sell Swedish television sets. This was a most tempting offer. As part of the proposed agreement it was necessary for the appellant to arrange for a guarantor. Both Herald International and the First National City Bank, who were providing banking facilities, required this. 3. The father and brother of the appellant held a controlling interest in the Luen Hing Shing Development Company Limited. The appellant asked his father if his company would furnish the guarantee. The father suggested that it would be necessary for a survey to be made to determine whether the proposed selling price of the television sets was competitive. Shortly after this, the father left Hong Kong. 4. In August 1975, the appellant gave Herald International a document which purported to be a guarantee given by the Luen Hing Shing Development Company. It bore the signatures of the appellant's father and brother and a witness. All these signatures were forgeries. They had been traced on the document. In November 1975 the appellant supplied the First National City Bank with a purported resolution of the Luen Hing Shing Company guaranteeing the appellant company and also a letter of guarantee purportedly from that Company to the same effect. Each document has the signatures of the appellant's father and brother, signatures which had been forged. 5. Later, Herald International called upon the Luen Hing Shing Company to honour this guarantee to the extent of some $38,000. An action was brought against them. This was withdrawn upon full payment of the claim and a further sum for costs. The appellant's father paid this and he was later reimbursed by the appellant himself. The debts of the Ka Lup International Company were settled in a similar manner. Neither Herald International nor the First National City Bank has lost any money and the debts of the Ka Lup International Company have been fully paid. 6. The appellant comes from an excellent family background. His father and brother are both solicitors and are well-known in business circles. The appellant had an excellent education in Hong Kong, Ireland, England and the United States of America. The appellant is married and it would seem that his choice of his wife was the subject matter of a family dispute, a dispute which has since been happily settled. 7. Counsel for the appellant pointed out the difference between what he called an ordinary case of forgery, and what he referred to as a 'Welham' case. The former he described as a deliberate swindle resulting in personal enrichment. The latter case refers to Welham v. R.(1). In that case the appellant witness forged hire purchase agreements on the strength of which certain finance companies advanced money to his employers. The forged agreements enabled the finance companies to lend money which they could not ordinarily do because of certain Governmental credit restrictions and because by their Memorandum and Articles of Association they could not act as moneylenders. The appellant's acts did not result in his personal enrichment. The court held that the appellant was guilty of uttering a forged document none the less. He was sentenced to nine months' imprisonment. 8. Counsel suggested that the present case was a 'Welham-type' case. And stated that in the United Kingdom the modern practice is to pass a suspended sentence or a very short custodial sentence in such cases, as indeed was done in the Welham Case (1) He urged that the motive of the appellant was not to swindle. He was cutting corners. He was too eager to emulate the success of other members of his family. Counsel also pointed out that it is virtually impossible for this offence to be repeated and that the appellant is a disgraced businessman. 9. Before passing sentence the trial judge referred to the way in which the defence had been conducted and said that the appellant had tried "to smear" other members of his family. Counsel for the appellant took exception to this. We think that the remark of the trial judge was not altogether unjustified, since the defence tended to leave some suspicion of complicity in the offences on other members of the family. 10. Uttering forged documents is a serious offence. It is particularly so in Hong Kong which is essentially a business community. While we agree that this may be classed as a 'Welham' case we do not think we should be guided to any great extent by recent sentences passed in the United Kingdom. 11. Taking into consideration the nature of the case, the fact that full restitution has been made, and the previous good character of the appellant, we think that justice will best be done if we allow the appeal against sentence to the extent of substituting a sentence of twelve months on each of the three counts for the sentence of eighteen months. The sentences are to be served concurrently.
Representation: Hazan, Q.C. & R. Wong (P.C. Woo & Co.) for appellant Gurney for crown (1) (1961) A.C. 103. |