HKSAR v. Cheng Man Cheung

CACC000334/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.334
(Criminal)

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Coram : Hon Nazareth, V.-P., Mayo & Stuart-Moore, JJ.A.

Date of Hearing : 15 January 1999

Date of Judgment : 15 January 1999

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 22nd June 1998, the Applicant was found guilty of nine charges of obtaining property by deception and one charge of evading liability by deception following a trial in the District Court before Judge Longley. The Applicant received four years' imprisonment on each charge concurrently and he now seeks leave to appeal out of time.

2. With commendable brevity, the trial Judge set out the nature of the Prosecution's case (to be found at page 23E of the Appeal Bundle) where he said :

" It is the case for the prosecution that Vista Industries Company was from its outset a fraudulent enterprise set up and controlled by the defendant. It is also the prosecution case that KWOK Wai-ming was a heroin addict brought in simply as a smoke screen to lend his name to the firm but to take no further part in its activities. The prosecution say that the only reasonable inference is either that the defendant intended from the outset eventually to defraud suppliers by issuing worthless post-dated cheques in return for the supply of goods having first gained their confidence by making payment for earlier transactions, or that the defendant was from the outset practising what they describe as a dormant deception. In other words, he intended to carry on business, apparently legitimately, as long as it was profitable, but as soon as the business became unprofitable he intended to disappear with the goods leaving his creditors with unpaid cheques."

After a review of the evidence, the Judge at page 28 in the Bundle concluded that the evidence had satisfied him that Vista was a fraudulent enterprise from the outset and that the only reasonable inference from the evidence was that it was the intention of the person or persons behind Vista ultimately to defraud its creditors in the manner alleged in the charges before the Court. The Judge went on to say that he was satisfied that this was "not a case of a legitimate trading firm, finding itself in difficulties and unable to meet its debts. From the outset, this firm was being operated in a manner that was very curious...."

3. The Applicant has provided no sensible explanation for this application being long out of time, and we are satisfied that that explanation is not good enough. He stated that his lawyers only assisted him with an application (now abandoned) relating to conviction. In saying this, we have, of course, heard the Applicant as to the merits of his application. He has advanced really two matters. The first is that he has seen on television a case of a similar kind to his own where the losses involved were considerably more than in his case. The defendant in the case on television received a shorter sentence. In regard to that, the Applicant should understand that this Court is here to review the Applicant's case and not some other case where there may have been all sorts of special considerations to take into account. We do not know what the reasons were for the shorter sentence given to the person that this Applicant heard about on television, but we are in a position to review fully the Applicant's case because all the circumstances are before us.

4. The second matter raised by the Applicant concerns his domestic circumstances, and he says that the mitigation did not fully explain the matters which could have been put forward on his behalf.

5. We can say that there is not the slightest indication that the sentence was inappropriate. On the contrary, the Applicant was guilty of what is commonly referred to as a long-firm fraud. The Judge rightly described this as a sophisticated fraud committed over several months. The Applicant was able to acquire goods to the value of $557,000. He had little mitigation beyond the fact that he was of good character and that was taken into account by the Judge in passing sentence. The four year starting point taken by the Judge can in no sense be criticised.

6. Leave to appeal out of time is refused.

7. As there is no merit in the application at all, we shall order that three months of the time spent by the Applicant in custody shall not count towards his sentence.

Representation:

Mr Cheung Wai Sun, S.G.C., for D.P.P./Respondent

Applicant Cheng Man Cheung, appearing in person