Yu Tak-kam v. The Queen

CACC000247/1982

BETWEEN

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Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 28 May 1982

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JUDGMENT

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McMullin, V.-P.:

1. The appellant appeals against sentences totalling 4½years imposed upon him after his conviction in the District Court upon some 15 charges. Five of those charges are of evading liability by deception, contrary to section 18B subsection 1 of the Theft Ordinance, and the remaining charges are charges of obtaining property by deception contrary to the provisions of section 17(l) of that Ordinance.

2. The appellant was a dealer in meat. We are informed that he had been in that trade for a number of years but left a partnership about 18 months prior to the offences with which we are now concerned and set up upon his own in a business called the "Shing On Company" which operated in No. 8, Shing On Street, Shaukiwan.

3. Business appears not to have gone very well with him and upon the agreed facts which appear in the summary before us (the appellant having pleaded guilty to these charges) it is conceded that he had decided to sell his business. He was in treaty with a person called CHAN Hok-haw in the month of February 1981. The summary states that he actually sold his shop on the 24th of February. Mr. Walters for the Crown informs us that he was in the process of making an agreement upon that date and the business was to be transferred upon the 1st of March.

4. The offences took place within a period of 8 days from the 20th of February to the 28th of February, and it was therefore clear that for part of the time during which these offences were being committed, the appellant was aware that he was going to dispose of his business.

5. The offences themselves concern the obtaining of quantities of meat from other traders for the purposes of the appellant's own business. The evading offences relate to post-dated cheques issued in return for deliveries of meat which cheques the appellant agrees he knew could not be met, there being not sufficient funds in any account owned by him to achieve payment on those cheques.

6. The other counts of obtaining were simply occasions upon which without paying money or cheques he had prevailed upon the dealers to deliver meat to him. Six dealers in all were involved.

7. Mr. Iu makes the point that this appellant, prior to these events, had had these six dealers as suppliers and that his trading with them up to then, appears to have been normal and perfectly honest. The same, it is said, is true of his prior experience as a meat merchant when in partnership with another person or persons.

8. It is, however, clear that what the appellant did was the result of a positive choice on his part and that it did involve a plan to defraud in as much as he had decided that his business could not prosper any further and had decided to sell it. We are not clear what the sale involved - whether it involved the transfer of premises and equipment or whether it meant simply the transfer of the goodwill plus some equipment. We are told that, in any event, refrigeration machinery used by him was transferred. The point is that at the time that that was being arranged, he was aware that his business had for all intents and purposes failed and he had decided to dispose of the meat which had been delivered to him (and which is referred to in the several charges) to other persons for cash. He achieved thereby a sum of about $138,000. It was his intention in doing so (as it is stated in the summary of facts) to abscond. He did, in fact, leave his premises and was not arrested until the following August. He then co-operated with police and when brought to court, he pleaded guilty to all charges.

9. Mr. Iu has put before us a number of cases, none of which can be of very great assistance in the present matter except in so far as it would appear from them that sentences imposed in these courts for this particular kind of commercial fraud range between 18 months and 2 or 3 years. There are some exceptional sentences. In a case taken by this court last week, sentences totalling 5½ years imposed by the same District Judge on 20 counts of a similar kind were upon appeal reduced to 3 years.

10. In imposing sentence in the present case the judge appears to have chosen his separate sentences by way of achieving a proportion between the amount imposed and the amount of money involved in the particular fraud. On the 4th count he imposed 3 years' imprisonment, the sum involved being $73,000 odd and upon the 11th count 1½ years, the sum involved being $30,000. He made all sentences run concurrently save those two sentences which were ordered to run consecutively to each other although concurrently with all the other sentences. This was one continuous series of dishonest transactions and we do not think that that was right in principle.

11. That, however, is not the end of the matter. Various points had been put before us by way of mitigation by Mr. Iu. He has dealt with the case carefully and without over-stressing anything in the nature of virtue in his client. He concedes that it was a considered fraud. He points out, however, that in view of the very good past record of this man in the trade in which until recently he has been successful, his falling into these crimes occurred about the time of the Chinese New Year - a time when, as is well-known, traders normally settle their outstanding debts. The actual occasion of his losses appears to have been gambling at about that time. It is not suggested that the accused has in previous years been an excessive gambler, and it may be that on this occasion he was unusually unfortunate. He is a family can with young children and it has been represented to the court that he is, through the good offices of an uncle, in a position presently to offer part-repayment of the monies lost through his fraudulent transactions. A sum of $40,000 is said to be presently available for that purpose. It is also said, and we have no reason to doubt it, that the same relative is willing to re-establish the defendant in his business. That business before it fell into disrepair was, we are told, capable of yielding a net profit of about $10,000 a month. It is suggested that he would be in a position, if able to trade again, to pay something like $5,000 a month. That, however, remains purely sup-posititious. I mention it merely to indicate that there is a degree of goodwill upon the side of the defendant to which this court feels it must pay attention.

12. We take into account, therefore, the fact of his previous good history, the earnest of his desire to repay which has fructified already to the extent of $40,000 and the possibility that he may be ultimately able to re-establish himself in honest trading.

13. Nevertheless, it is not a case in which we feel that a suspended sentence would be appropriate. The punitive and retributive aspects of sentence cannot be ignored in such circumstances as these.

14. The appeal is, therefore, allowed to this extent that for the sentence of 3 years imposed upon count 4,we would substitute a sentence of 18 months and that sentence, together with the sentence of 18 months imposed on the 11th count, will run concurrently with all the other sentences.

15. We would wish strongly, however, to stress that the course we have taken in this case is strictly one of clemency and, I think, I should add, upon matters brought to our attention which were not brought to the attention of the trial judge. This case must in no circumstances be regarded as a pointer in the direction of what is an appropriate sentence for this kind of offence.

Representation:

Mr. Thomas Iu (Y.K. Poon & Co.) for the Appellant.

Mr. R.G. Walters, for Respondent/Crown.