R. v. Fong Fu Chung

CACC000386/1994

IN THE COURT OF APPEAL

1994, No. 386
(Criminal)

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Coram : Yang, C.J., Bokhary, J.A. and Keith, J.

Date of hearing : 22 March 1995

Date of judgment : 22 March 1995

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J U D G M E N T

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

1. This is an application for leave to appeal against sentence. The case comes to us from a trial before His Honour Judge Lugar-Mawson in the District Court.

2. There was a government housing project in Tsz Wan Shan. Cement was supplied to the main contractor by a company named Hon Wah Construction Material Ltd.

3. Two men, both of previous good character, were on trial. The 1st accused, who is now the applicant before us, was the managing director and one of the three shareholders in Hon Wah. He is in his mid 30's. The 2nd accused, who is not before us, was Hon Wah's assistant sales manager. He is in his late 20's.

4. Four charges were laid against these two men.

5. The first charge was of conspiracy to utter forged documents. The particulars of offence are that the two accused "on divers days between the 1st day of July 1990 and the 5th day of October 1991, in Hong Kong, conspired together to utter forged documents purporting to be test certificates in respect of cement with intent to defraud the Housing Department of the Hong Kong Government, knowing the same to be forged".

6. The second charge was of conspiracy to defraud. The particulars of offence are that the two accused "on divers days between the 1st day of December 1989 and the 5th day of October 1991, in Hong Kong, conspired to defraud such companies, firms and persons as might be induced to purchase cement from or through them or from or through Hon Wah Construction Company Ltd by dishonestly:

(a) forging and uttering to such companies, firms and persons, test certificates in respect of such cement; and

(b) falsely representing to such companies, firms and persons that the said test certificates and the details and data contained in them were true and genuine."

7. The third charge was of uttering a forged document. The particulars of offence are that the two accused "uttered a certain forged document, namely a copy of a report purporting to be a report on Han Zi Brand cement prepared by Materialab Limited on the 5th day of February 1991 and given the reference number 902098K7802, knowing it to be forged, and with intent to defraud".

8. The fourth charge was also of uttering a forged document. The particulars of the offence are that the two accused "on or about the 15th day of July 1991, uttered a certain forged document, namely a copy of a report on Gui Kun Lun Pai Cement, purporting to be prepared by Materialab Limited on the 28th day of August 1990, containing certain test data, given the reference 901689K2659, knowing it to be forged, and with intent to defraud".

9. Both accused were convicted on all charges on May 30 last year, and were sentenced on July 28 that year.

10. Each was sentenced to two years' imprisonment by way of concurrent terms on each charge: two years on the first charge; also two years on the second charge; 6 months on the third charge; and also 6 months on the fourth charge.

11. The difference is that the sentence passed on the applicant was made immediately custodial, while that passed on his co-accused was suspended.

12. The applicant now seeks leave to appeal against sentence; and this is the judgment of the court on that.

13. A number of perfected grounds of appeal were filed. We can go straight to this point. In passing sentence, the judge, having referred to the danger to the public of substandard structures, went on to say this:-

"Those who knowingly place the public in such a danger for their own profit by peddling sub-standard materials, or materials whose standards have not been checked, can expect little sympathy from the criminal courts.

It is no defence and it is no mitigation, that the cement involved might have been of the required standard. In fact I note from the evidence lead at trial that on two occasions that it was not so. The fact is that no testing of the quality and standards of the cement involved in this case would appear to have ever been carried out. Both Accused appear to have had a cavalier disregard for the statutory regulations, the terms of their supply contracts and for the safety of the public at large.

Much was made at trial of a Chinese 525 standard, there was no evidence before me of what this standard is, which body sets and administers it, or indeed, whether it exists at all."

14. There was some controversy as to what the evidence below could or could not have established in regard to all those matters. Be all of that as it may, the prosecution now accepts before us that the strength of the cement supplied, which was of Chinese standard 525, was up to the strength of the cement which it was misrepresented to be, namely, cement of British standard 12. No factor other than strength was relevant to safety here. So the judge's reference to the danger to the public created by the peddling of sub-standard materials was off the point. And if he was suggesting that it made no difference to sentence whether the material supplied was up to standard in terms of safety, then he would have been going too far. In fact, however, we do not think that he was actually suggesting anything of the kind.

15. Now, what we have to do is to consider what sentence the judge would have passed if he had apprehended the facts correctly. If he had apprehended the facts correctly, he would still have seen, as indeed he did see, that this was on any view a bad case. In order to sell his company's cement, the applicant conspired to cheat and forge documents on which people should have been able to rely, and undoubtedly did rely. And he uttered such documents.

16. All things considered, we think that the judge - and this is the best we can do - would probably have passed a sentence of 15 months' imprisonment on each of the conspiracy charges. That sentence is not one which could be criticised as being overly lenient. In all the circumstances, even though we think that possibly the sentences passed could have been passed even on the facts as they truly were, we propose to reduce the sentences on the conspiracy counts to 15 months' imprisonment. We leave undisturb the 6 months sentences on the third and fourth charges. And of course all the sentences remain concurrent as before. That makes a total of 15 months in place of the two-year total imposed by the judge.

17. Treating this application as the appeal itself, we allow the appeal to the extent of making that reduction, so that the total sentence is now one of 15 months' imprisonment.

Representation:

Mr David Chan (of the Attorney General's Chambers) for the Crown

Mr J. Griffiths Q.C. and Mr K.Y. Thong (instructed by Ho & Wong) for the Applicant