The Queen v. Chan Yiu Hung

CACC000327/1990

BETWEEN

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

Date of hearing: 27 December 1990 and 26 February 1991

Date of judgment: 26 February 1991

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JUDGMENT

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Clough, J.A.:

1. The applicant, who is unrepresented, pleaded guilty in the District Court before His Honour Judge Wilson to a charge of procuring the execution of a valuable security, namely a cheque for $100,000 contrary to section 22(2) of the Theft Ordinance (Cap. 210) and to a charge of possession of a forged travel document, namely a forged Singapore passport, contrary to section 42 (2) (c) (i) and (4) of the Immigration Ordinance (Cap. 115). He was sentenced to 18 months imprisonment in respect of the cheque offence and to 2 years' imprisonment in respect of the passport offence. The sentences were ordered to run concurrently with each other but consecutive to a sentence of six months imprisonment for an offence of evasion of liability by deception which had been passed on the applicant in March 1990 and which he was in the process of serving when sentenced by Judge Wilson on the 13th June 1990. The applicant now applies for leave to appeal against the sentences passed on him by Judge Wilson.

2. He had originally also faced three other related charges under the Theft Ordinance, all arising out of the same transaction as the cheque offence to which he pleaded guilty. At the outset of his trial on the passport offence and the four offences under the theft Ordinance he had pleaded guilty to the passport offence but not guilty to the other offences. The trial then began and, after a voire dire, the applicant's cautioned statement, in which he had made material admissions, was admitted in evidence by the judge. At that stage of the trial the applicant changed his plea to guilty on the charge relating to the abovementioned cheque offence and was thereafter formally acquitted on the remaining three charges under the Theft Ordinance in respect of which the Crown elected to offer no evidence.

3. The cheque offence for which the applicant was sentenced was committed in the course of an abortive sale of 57 tons of so called cellulose acetate negotiated by the applicant, under an alias, on behalf of a vendor company in which he had an interest to another company for $1.88 million. The purchasing company paid this price by a number of payments including the cheque for $100,000 which was the subject of the charge to which the applicant pleaded guilty. He personally received the proceeds of the cheque which have never been recovered. The applicant had, as he admitted in his cautioned statement, knowingly falsely represented on behalf of the vendor company to the purchasing company that the material supplied was of the specified quality.

4. When traced by the police some weeks after the deception offence the applicant was using a different alias. He was found to be in possession of a forged Singapore passport, his own photograph having been substituted for that of the original holder. This was the subject of the charge under the Immigration Ordinance. The passport had evidently been used frequently, but the judge sentenced the applicant on the basis that the user possibly occurred before the applicant came by it.

5. As regards the cheque offence, the judge made it clear in his reasons for sentence that he was sentencing the applicant solely on his own admission that he was guilty of that offence and that the $100,000 had gone into his own pocket with no realistic prospect of recovery. He emphasised that he drew no adverse conclusions against the applicant regarding the payments constituting the balance of the purchase price of $1.88 million.

6. The judge referred to the position of the applicant as being "aggravated" by his previous conviction for evasion of liability by deception (the sentence for which he was then serving), and also by an earlier conviction and fine on the 3rd July 1986 for making a false statement for the purpose of obtaining a document of identity. Although we consider the work "aggravated" was not well chosen we do not consider that by using it the judge can be taken to have gone so far as to have fallen into the error of sentencing the applicant on his record.

7. With what he expressed to be "considerable  hesitation" the judge accepted the submission of the applicant's counsel that his offences had come to light together and that there was a "thread of connection" between the two offences to which he had pleaded guilty in that it appeared that it had been his practice to use an alias in commercial transactions. He therefore accepted that he could impose concurrent sentences.

8. In arriving at the sentences he imposed the judge indicated that he was giving the applicant credit (which he unfortunately did not quantify) for his pleas of guilty and that he was taking into account the totality principle insofar as the applicant was already serving an unexpired sentence.

9. In his grounds in support of his application the applicant claimed that he was misled by his lawyer and the judge into pleading guilty to the cheque offence and the passport offence. When this application initially came to be heard on the 27th December 1990 the court was concerned to investigate this allegation. At that time the applicant informed the court, when questioned by it, that he had pleaded guilty of his own accord to the passport offence but that he had not intended to defraud any body and had pleaded guilty to the cheque offence on the advice of his counsel after counsel had seen the judge and then told the applicant that he would be given a concurrent sentence if he pleaded guilty to the latter charge.

10. After adjourning the application to enable the matter to be investigated the court has now had the benefit of reading the affidavits of both counsel who attended the trial and the judge's report. We are satisfied that the applicant in fact pleaded guilty to the cheque offence after being advised by his counsel that, in the light of observations made by the judge in chambers (after both counsel had addressed him) the applicant's counsel believed that the length of the effective sentence would depend on the penalty for the passport offence and that, in the event of the applicant pleading guilty to the cheque offence, counsel believed he could persuade the judge to make the sentences for both offences concurrent. We are equally satisfied that the applicant was not in any way misled in this matter by counsel or by the judge and that defending counsel's advice was based on an appreciation of the situation which proved to be correct.

11. In fact the applicant appears, from what he told the court at the previous hearing, to have misapprehended, as a result of consulting a Correctional Services officer, that the six months sentence passed on him in March 1990 would be served by him concurrently with the sentences subsequently passed by Judge Wilson. This evidently led the applicant to abandon his appeal in respect of the earlier sentence. However this is not relevant to the present application.

12. The applicant further contended in his grounds that the sentences were excessive. He mentioned that he had been doing import-export business with China in building material and agricultural products since 1980. He said that he had been maintaining his father and his wife and five children. His whole family had, he said, migrated to Canada in 1986. They had been granted the right of abode there in mid-1989 but he had been informed in May last year by the Canadian authorities, that if he failed to go to Canada himself to go through the necessary formalities his family's right of abode might be revoked. Today he has informed the court that in December the Canadian Government ordered his wife and children to leave Canada and that on 16th January 1991 his wife started divorce proceedings against him in Canada. He said that he had been given custody of his four children, who were at present being looked after by friends in Canada. It is for these reasons that he sought a reduction in sentence to enable him to go to Canada at an earlier date.

13. In our judgment the applicant was fortunate to be given wholly concurrent sentences in the circumstances of this case. If he had received wholly or partially consecutive sentences we would have been inclined to uphold them. In that event his effective total sentence would probably have been increased.

14. The problems he has created for his and his family's migration plans by the commission of serious criminal offences cannot be allowed to affect the sentencing process in respect of those offences for which he received a relatively lenient effective sentence.

15. The application is accordingly dismissed, and, because it is wholly devoid of merit, we direct that pursuant to s.83w of the Criminal Procedure Code (Cap. 221) three months of the time spent in custody by the applicant pending the hearing of his appeal is not to be reckoned as part of the effective term imposed by the sentences passed on the applicant on the 13th June 1990.

Representation:

Applicant in person

Mr. A.A. Bruce for Crown Prosecutor