Chan Shuen Kau and Another v. The Queen

CACC000356/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 356 OF 1973

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Coram: Pickering, and Trainor, JJ.

Date of Judgment: 21st June, 1973.

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JUDGMENT

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Pickering, J.:

1. The 1st appellant was charged with, in the first instance, two charges of forgery and two of uttering. As the fruit of those four charges, there was a fifth charge of obtaining property by deception. The 2nd appellant also faced that fifth charge and the property obtained was, in fact, money to the tune of some sixty-five thousand odd dollars. The sixth to the tenth charges follow a precisely similar pattern, the 1st appellant being charged with two offences of forgery and two of uttering and, in the fifth charge, of obtaining property by deception. Similarly, the 2nd appellant was also charged with that offence of obtaining property by deception, that is, some $38,600.

2. On the first four charges, the 1st appellant was sentenced to six months' on each, those sentences to run concurrently. On the fifth charge, that is the first one of obtaining property by deception, he was sentenced to 18 months' imprisonment to be consecutive to the sentences on the first four charges. On that fifth charge, the 2nd appellant was also sentenced to 18 months' imprisonment. In respect of the sixth to the ninth charges, the 1st appellant was sentenced to 9 months' imprisonment on each, those sentences to be concurrent, but consecutive to the sentences on the first to the fifth charges. In respect of the tenth charge, that is the second charge of obtaining property by deception, he was sentenced to 24 months' imprisonment to run consecutively to the sentences on charges one to nine. In respect of that tenth charge, the 2nd appellant was sentenced to 24 months' imprisonment to run consecutively to the 18 months to which he had been sentenced on the 5th charge. The total sentences imposed upon the 1st appellant amounted to 57 months. Those upon the 2nd appellant to 42 months. Miss Leong now appears for both appellants on an appeal against sentence.

3. Miss Leong's first ground of appeal is that the judge erred "in making his foremost intention to pose a deterrent to prospective offenders rather than to punish the appellants by sentences fitting the offences and the appellants pleas thereto". In connection with this ground of appeal, Miss Leong urges that deterrence is unnecessary since these crimes are not of a widespread nature and that opportunities for this precise type of forgery and uttering are limited to employees of banks. We think it would be a little unrealistic for us or for the learned judge in the court below so to have confined our minds in considering this question of deterrence. What we are concerned with is not specific types of forgery by specific types of employees in banks, but forgery and uttering in general with a view to profit and, indeed, with commercial crime in general. Giving the judgment of the full court in criminal appeal No.889 of 1971, I had occasion to say this:

"Finally we would observe that commercial crime is just as endemic in Hong Kong as are crimes of violence and it has a longer history. Indeed commercial dishonesty may fairly be described as rampant. We do not think it fanciful to assume that some of those who decry allegedly lenient sentences imposed for crimes of violence, are themselves members of a commercial community the hands of many members of which are far from clean in regard to the criminal law. We find it ironic that representatives of those who complain of allegedly lenient sentences in the case of theft accompanied by violence, are the first to complain of perfectly reasonable sentences inflicted for more subtle and widespread methods of parting the victim from his money."

And went on to say that:

"Commercial honesty, if not the lifeblood of the community, should be so regarded and those who transgress should expect appropriate penalties."

As we have said, we are not dealing with one narrow type of forgery but with forgery in general and the wider aspect of commercial crime. That being so, the aspect of deterrence was a legitimate consideration in the learned judge's mind and it must also be borne in mind that in imposing the sentences which he did impose, the learned judge was taking other offences into consideration, as requested by the appellants. The total sum with which the appellants made away, amounted to more than $313,000. The underlying purport of Miss Leong's complaint in this connection was that the judge, having said that he was taking into account the pleas in mitigation, the contents of the probation reports and the fact that each accused had surrendered himself to authority, it was perhaps a little illogical to go on to speak of deterrent sentences and, in the case of the 1st appellant, to go on to impose sentences which amounted to only three months less than the maximum which the judge could have imposed. We see no illogicality for, as Mr. Corrigan for the Crown pointed out, the judge's proper approach is not to start with his own maximum in mind, but what would be the maximum imposable by law in any court for the particular offence, and it is perfectly possible and legitimate for a district judge to say to himself that he has given due weight to everything said in mitigation but nonetheless, in the circumstances of the particular case before him to impose the maximum of five years open to him.

4. In coming to deal with the sixth to tenth charges, the learned judge observed that by virtue of the first to the fifth charges, he could not regard the appellants as first offenders although they have not been before any court previously. It is Miss Leong's second ground of appeal that the learned judge was in error in adopting this approach. We detect no error in the approach. We think it a perfectly legitimate method of dealing with the appellants, the more so since they had asked for other offences to be taken into consideration.

5. Finally, we would observe that the overall totality of the sentences imposed upon each of the appellants appears to us to be apt. The total period of imprisonment could, no doubt, have been arrived at in various ways. The sentences imposed could contain a number of permutations and combinations and the matter could have been approached by the learned judge from a variety of angles. We see nothing wrong in principle with the approach which the learned judge did, in fact, adopt nor with the totality of the sentences and, accordingly, the applications for leave to appeal against sentence are refused.

Representation:

Miss J. Leong assigned for both appellants.

A.J. Corrigan, S.C.C., for respondent.