Cheung Bing Lit v. The Queen

CACC000240/1979

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Coram: Roberts, C.J., Huggins, J.A. and McMullin, J.

Date of Judgment: 27 July 1979

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JUDGMENT

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Roberts, C.J.:-

1. The appellant in this case pleaded guilty to six counts of forgery and six counts of obtaining pecuniary advantage by deception. He also asked that there should be taken into account 17 other pairs of offences, one of forgery and one of obtaining in each pair.

2. I do not think that it is necessary for me to go in any detail into the facts, other than to say that the appellant was a partner in a garment factory business in Kwun Tong which produced goods mainly for export. In order to obtain overdraft facilities from the bank at an earlier stage than would have been possible in the ordinary course of business, the appellant forged dock receipts and invoices and presented these to the Shanghai Commercial Bank in order to obtain credit for the business.

3. At a later stage, when the goods covered by the forged dock receipts were shipped, an appropriate bill of lading was produced to the bank and the forged receipts were recovered by the appellant.

4. These offences occurred between the months of January and December 1978, though with one exception they all appear to have occurred during the period from September to December 1978.

5. There may very well be an explanation of why the January transactions were still outstanding and were not covered by subsequent production of bills of lading and it is clear that the bulk of the offences did take place within a very short period towards the end of 1978.

6. Counsel for the appellant has urged us to take the view that a more lenient sentence would be appropriate, in view of the fact that the appellant intended that the money obtained by way of loan from the bank should ultimately be repaid.

7. It certainly is reasonable to assume that this was the appellant's intention when he started the system, but there must have come a point at which it was obvious to him that the financial difficulties of the business were such that it was highly unlikely that the business would be able to repay all its outstanding liabilities to the bank.

8. It has also been urged upon us that this was not a case of a man putting the money into his own pocket. It appears from the record that all the money obtained by virtue of the increased overdraft facilities was used for the purposes of the business and to that extent the appellant was not putting the money in his own pocket. He is, however, described in the record as a partner in the business and from that it must be assumed that he had a direct personal pecuniary interest in the business's prosperity and survival.

9. The agreed statement of facts which was put before the trial judge shows that the outstanding amount obtained on the forged documents was 1.433 million dollars. In his reasons for sentence, the District Judge finds as a fact that the bank concerned was defrauded of almost $1½ million during the first nine months of 1978.

10. As against this, it may be reasonable to set off a possible return to the bank of a maximum of a half a million dollars, by virtue of the sale of two flats which were mortgaged to the bank and the possibility of a further sum accruing to the bank in relation to a trust receipt which it holds for a shipment of denims. Making every possible allowance which we can for the appellant, even then a sum of not less than one million dollars must remain outstanding to the bank which was obtained by the appellant as the result of these forged documents.

11. In those circumstances, the trial judge was entirely justified in imposing a very substantial sentence of imprisonment.

12. However, we consider that a sentence of four years would have been the likely maximum sentence which would have been imposed at the end of a contested case of this nature.

13. The appellant not only pleaded guilty but did all he could to assist the police, once he had surrendered himself to the Commercial Crimes Office.

14. In our view, insufficient allowance was made for this and we feel that, if the trial judge had directed himself properly to these aspects of the matter, he would have passed a lesser sentence.

15. We therefore allow the application for leave to appeal against sentence and impose instead of the sentence of four years' imprisonment a sentence of three years on each of the six charges of obtaining pecuniary advantage by deception. The sentences on the six forgery charges will remain the same.

Representation:

P. Yu (J.S.M.) for appellant

Moorfoot for crown/respondent