The Queen v. Wong Shiu Fat

CACC000323/1983

Headnote

Sentence - charge of evasion of liability by means of post-dated cheque for $20,000 - credit already obtained, cheque was only means of delaying the creditor taking action for recovery - custodial sentence of 12 months excessive and wrong in principle - an immediate custodial sentence only justified if a substantial amount of money is obtained by deception, not so in this case - only thing obtained was time to pay.

Date of hearing   : 17th May, 1983

Date of judgment: 17th May, 1983

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 323 of 1983

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Between

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Coram:  Hon. Penlington, J. in Court

Date:  17th May, 1983

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JUDGMENT

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1. This is an appeal against sentence following a conviction for evading a liability by deception in respect of a cheque of $20,000 which was not met on presentation. It is quite clear however that this cheque for $20,000 did form part of a larger transaction between the appellant and the complainant, Mr. KAM Yu-ming, involving some $157,000. With respect to the magistrate I think that fact has somewhat clouded his view of the appropriate sentence in the case.

2. The appellant now abandons his appeal against conviction and therefore there was no question that when he drew this cheque he did so knowing that it would not be met and that he did so with intent to delay making payment. The evidence was that this cheque was drawn on the 20th June. The complainant reported to the Police when it was dishonoured on the 5th July and immediately decided to take civil action, which he did. So in fact what the appellant succeeded in doing by drawing the cheque was, at most, to delay civil action for a period of some two weeks. While I think the magistrate was quite entitled to look at the other background facts of the case, there was only one charge, that was in respect to the sum of $20,000, and the appellant obtained a breathing spell of a little over of 14 days in respect of that amount .

3. The magistrate has said in his statement of findings that he was satisfied that the appellant defrauded the complainant in drawing the cheque knowing that it would not be met on presentation and having transferred all his assets to China (a matter which was in dispute). He did so with the deliberate intention of defruading Mr. KAM. I don't think he was justified to come into that conclusion. The appellant had already obtained the credit, rightly or wrongly. What he was doing in drawing the cheque for $20,000 was obtaining time in which to pay. That being so, and bearing in mind the fact that the accused has been in Hong Kong for thirty years, not as the magistrate was wrongly told three years, and has a clear record , I think at an immediate sentence of imprisonment of twelve months was excessive and indeed wrong in principle. In my view only in cases where a substantial amount of money is obtained by fraud is an immediate custodial sentence justified. That was not so here.

4. Since the appellant was granted bail, he has paid some $34,000 to the complainant. I had some doubt whether that was a fact to which I should take into account. Mr. O'Grady for the Crown was also doubtful. I think however it does indicate at the time of trial the appellant's statement that he did not intend to permanently deprive the complainant of his money appears to be borne out and to that extent I can take it into account.

5. In cases of this sort concerning post-dated cheques, which are Very common, the court must be careful. The charges should be analized with care to see exactly what is the criminal intent alleged. In this case I think the magistrate has overlooked the fact that it was not the money that was alleged to have been obtained dishonestly but time in which to repay it.

6. The appeal is allowed to the extent that the sentence will be reduced to enable the accused to be immediately released. I have taken into account that he has spent 34 days in prison before he was granted bail.

Representation:

James O'Grady Counsel for Crown.

CHENG Huan (Laurence Pang & Co.) for Appellant.