R. v. Ng Yuen Jan, Danny

CACC000357/1996

IN THE COURT OF APPEAL

1996, No.357
(Criminal)

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Coram: Hon. Power, Ag. C.J., Mortimer, J.A. and Seagroatt, J.

Dates of Hearing: 24 October 1996

Date of Judgment: 24 October 1996

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J U D G M E N T

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Power, Ag. C.J.:

1. The applicant pleaded guilty before Judge Chung in the District Court to 35 charges. Charges 1-4 were offences of using a false instrument, which related to four company cheques of the Hung Wan Construction Co. Ltd., the victim in all of the offences, upon which the applicant had forged signatures. They were committed in June 1993 and the total sum which the applicant obtained as a result of those offences was $5.8m.

2. The next set of offences, Charges 5-33, were 29 offences of theft. These were committed over a period of seven years from April 1986 to March 1993. The applicant on each occasion caused the sum to be paid by the victim or its subsidiary into bank accounts which were controlled by him. The total amount involved was $27.99m from which the applicant obtained an amount of about $4m.

3. The final two offences, Charges 34-35, were offences of using a forged instrument. They occurred in January and February 1993. In the first of those the applicant fraudulently altered a cheque payable to the victim so that it became payable to a similarly named company controlled by him. The applicant then, in order to conceal that offence, forged a signature on an acknowledgement letter. He obtained some $1.7m from those offences. The total amount of the moneys obtained by him as a result of all of the offences was $11.15m. He says that he has dissipated that money and the victim has received no restitution.

4. The applicant, when the matter came to light, absconded. On 30th June 1993 he left Hong Kong for Macau and it appears that he then lived for a time in Thailand. He was arrest on 18th March 1996 at Hong Kong Airport when he returned from Thailand. Although he did not plead guilty at the earliest opportunity he did so, after being legally advised, at the pre-trial review.

5. The applicant had been employed in a position of trust as a principal accountant of the victim and it was because of his position that he was able to perpetrate all of these frauds. From April 1986 to June 1993 he steadily milked his employer using forgery and deceit. The offences were, throughout, calculated breaches of trust.

6. The trial judge, we feel, understated the matter when he said:

"Further, from the lengthy duration in which the crimes were committed, the use of forged documents to obtain the funds and, on one occasion, to conceal the crime, it is apparent that they were not committed on the spur of the moment. There must have been at least some degree of pre-meditation and planning on the part of the Defendant in doing so."

This hardly does justice to the criminality involved. There was clearly a high degree of planning throughout and all of the offences were calculated ones.

7. The trial judge when sentencing performed an elaborate exercise fixing the appropriate sentences in relation to each charge or set of charges and giving a discount for plea in relation thereto. He came to an overall sentence of 82½ years and then, acknowledging that this was very much in excess of his jurisdiction, adjusted the sentences so as to arrive, at the end of the day, at an overall sentence of 6½ years.

8. We think it proper to say that this matter should never have been brought in the District Court. The criminality and the amount involved were such as should have indicated that it was an appropriate matter to be brought before the High Court. However, it was brought in the District Court and, given the sentence of 6½ years, it is not surprising that today the applicant appeals against that sentence.

9. Mr. Marray, who appears for the applicant, has argued three grounds. He contends firstly that insufficient recognition was accorded the pleas given the limit of 7 years on the District Court's sentencing power; secondly that the starting point adopted by the judge was too high; and, thirdly, that adequate consideration was not given to the applicant's surrender, to his co-operation, to his plea of guilty and to his clear record. Given the criminality involved the sentence of 6½ years was a lenient one. Was the sentence a proper one, however, given the sentence limitation imposed on the District Court. That is the real issue in this appeal.

10. Mr. Marray has referred us to The Queen v. Ho Sik Yin Cr.App. No.126 of 1991, and The Attorney General v. Shek Wai Ip, Application for Review No.8 of 1994. In Ho Sik Yin's case, this court said:

"In the District Court when the starting point for sentence is 7 years imprisonment a discount for a plea of guilty must be made from the jurisdiction limit of 7 years, not from the starting point which the judge considers would have been appropriate had the case been heard in the High Court."

The court in Shek Wai Ip referred and approved Ho Sik Yin saying:

"It is true, as this court has held (The Queen v. Ho Sik Yin Criminal Appeal No. 126 of 1991) that a discount for plea must be made from the seven years but that is not to say that the seven years becomes the appropriate starting point. A judge in the District Court should make his determination as to the correct starting point without any reference to the maximum sentence allowed by s.82 (Mo Kwong Sang v. The Queen (1981) H.K.L.R. 610). If the starting point is in excess of the seven years, then he will, of course, have to observe that he is bound by s.82 and cannot impose a sentence of more than seven years and that he is further bound to make any deduction for plea from the figure of 7 years."

11. We think it appropriate to indicate that the reference to the District Judge being required to calculate the correct starting point was in no way meant to detract from what was said in Ho Sik Yin's case. It was suggested that this should be done so that the Court of Appeal, should the matter come to appeal, would be fully aware of the way in which the judge approached the sentencing of the offender. The words of Ho Sik Yin applied with full force at the time of the later case and apply with full force today.

12. We are satisfied that, having determined that the appropriate starting point was more than seven years, the judge should then have turned to consider the discount that had to be given to the applicant bearing in mind that seven years was the maximum which he could impose. As we have said, this applicant was very fortunate to have been tried in the District Court but that does not affect the assessment of discount. We are satisfied that, given his pleas which were offered at a relatively early time, he must be given a substantial discount, certainly more substantial than the six months which he received.

13. The application must succeed. The hearing of the application is treated as the hearing of the appeal and the sentence of 6½ years is varied to one of five years.

Representation:

Mr. D.G. Saw, S.A.C.P. (Crown Prosecutor) for the respondent.

Mr. John Marray assigned by D.L.A. for the Applicant.