HKSAR v. Chui Wai Yin, Elkes

CACC000384/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 384
(Criminal)

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Coram: Hon. Mayo, Leong and Stuart-Moore, JJ.A. in Court

Date of hearing: 8 January 1999

Date of delivery of judgment: 8 January 1999

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The applicant pleaded guilty to 7 counts of procuring the making of entries in the bank records by deception. He was sentenced by Deputy Judge Geiser in the District Court to a total of 3 years and 4 months imprisonment. The applicant admitted that in each of these offences, he purported to sell blank video tapes to foreign buyers through a company in which he was the sole proprietor. Having obtained the letter of credit from the foreign buyer, he presented it to the relevant bank together with shipping documents which purported to represent the shipment of the goods sold. As a result, the letter of credit was negotiated and the amount involved credited into the company's account. The containers which purported to contain the goods shipped by the applicant's company were found to contain only stones. The victim companies included English, Italian and Swedish companies and the total amount involved came to over HK$3.3 millions.

2. The applicant admitted that the company was set up by him together with another person solely for the present fraudulent operation and he had gained a total of HK$680,000 out of this operation.

3. The trial judge found that apart from his plea of guilty, there was no real mitigating factor and he adopted a starting point of 5 years; discounting this by one third, he imposed a sentence of 3 years and 4 months imprisonment on each of the seven charges, concurrent.

4. The applicant now applies for leave to appeal against that sentence on the grounds that his lawyer did not inform the trial judge of the role he played in the case and the reason of him taking part in it. He said he committed the offences because of financial difficulty he ran into because of his illness and also because he had been deceived. He also complained that the judge imposed the sentence based on harming the commercial reputation of Hong Kong.

5. In imposing this sentence, the judge said this:

"I am asked to consider the fact that others were involved in this scam and the defendant's role was comparatively minor. Whilst it may well be the case that other people were involved, I cannot accept that the defendant's role as minor. After all, he is the sole proprietor of this company and it was the defendant who was instrumental in presenting these falsified documents to the banks in order to obtain the relevant letters of credit.

What is at stake here is the good commercial reputation of Hong Kong Overseas and it seems to me that a message must be given by the courts by way of deterrent sentences to those who, by their actions, put that good reputation in jeopardy."

6. From what the judge said, he was not unaware of the role played by the applicant in these offences and it cannot be said that the applicant's legal representative had not informed the judge of this factor. The offences committed by the applicant were not an isolated incident, but they were a series of frauds on foreign trading companies within a short period of time. These give rise to the risk that Hong Kong's commercial reputation internationally would be harmed thereby. The judge was entitled to take the serious view he did. Having regard to the substantial amount that was involved in these frauds and the additional aggravating factor that the applicant intentionally set up the company for his fraudulent operation, the starting point of 5 years is appropriate.

7. Since there was no mitigating factor apart from his plea of guilty, the sentence of 3 years and 4 months in total for all the seven frauds is neither wrong in principle nor manifestly excessive. The application for leave to appeal against sentence must be refused.

Representation:

Mr. Patrick Cheung Wai-sun, D.P.G.C. and Mr. Prakash L. Daryanani, G.C.(D.P.P.) for Respondent

Chui Wai-yin, Applicant in person