R. v. Ng Yun Tong

CACC000272/1991

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Coram: Hon. Sir Derek Cons, V.P., Kempster & Penlington, JJ.A.

Date of hearing: 8 April 1992

Date of delivery of judgment: 8 April 1992

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J U D G M E N T

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Sir Derek Cons, V.P., delivered the judgment of the court:

1. Ng Yun Tong ("the defendant") pleaded guilty before Judge Chua in the District Court on 1st May 1991 to four charges of causing money to be transferred on a forged instrument. The offences had taken place in February 1990. The judge sentenced him to two-and-a-half years' imprisonment on each charge: those sentences to run concurrently but consecutive to sentences which he was then serving. The money involved in the four charges was over $500,000 and none has been recovered. At the same time no evidence was offered on eight other similar charges. The defendant now applies for leave to appeal against the sentences.

2. His conduct was neatly summarised by the judge below. She said:

"    The defendant has discovered that he has a facility for forgery. His modus operandi is to resort to mailboxes from industrial buildings and steal envelopes from them. Alone with the envelopes, he sorts them out. Hong Kong is a heavily populated business centre and not surprisingly he finds a number of cheques. He subsequently cancels the name of the bearer, forges the pertinent signature to certify the correction and puts in his own name. The cheques are often paid into his own bank account. In this way the defendant has found a simple but lucrative way to make money."

3. And he has been making money that way since 1980, even though during that period he has spent more time in prison than he has spent outside.

4. The last time he was released from prison he soon set to work again, but was arrested on 15th March 1990 for offences committed in January and February of that year. Since his arrest, and well before the proceedings which give rise to the present application, he appeared twice in the magistrates' courts. On 19th April 1990 he pleaded guilty in North Kowloon court to charges of uttering a forged document and of theft, being sent to prison for nine months. On 4th May the same year he pleaded guilty in Central Magistracy to several counts of theft and attempted theft, being sentenced to twelve months' imprisonment to run consecutively to the previous nine months. The present offences were not finally dealt with until May 1991, for reasons which were not really the defendant's fault. By that time he had only five months of the previous sentences to run.

5. Basically his complaint now is that it is unfair to add on another two-and-a-half years at this stage, particularly as on arrest, so he says, the police had agreed to deal with all the offences at one time. There is some force in that complaint and we are content to approach this application by considering whether the total sentence of four years and three months, if passed in consideration of all the offences that we have mentioned, would, in April or May 1990, have been manifestly excessive.

6. In our view it would not. The defendant has 89 previous offences of dishonesty. There is a probation report which is one of the most unfavourable that we have ever seen. There is no mitigating factor whatsoever except his pleas of guilty, and as regards the last four offences, the pleas were not made until well after his first appearance in court. In order to protect the public as much as for the other reasons inherent in every sentence of imprisonment, four years and three months was perfectly appropriate. The application is dismissed.

Representation:

William Lam, Crown Prosecutor for the respondent Applicant in person