The Queen v. Stephen Peter Cockings

CACC000258/1986

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. Li, V.-P., Penlington J.

Date of Hearing: 20th November 1986

Date of Judgment: 20th November 1986

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JUDGMENT

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Li, V.-P.:

1. The applicant was convicted of 6 counts of obtaining property by deception through his own plea. He also asked 34 other offences to be taken into consideration - 15 of which were similar, namely obtaining by deception, 17 of giving false information to pawnbrokers, one of evading liability by deception and one of making off without payment. We are informed at the commencement of this application that, in fact, the count of evading liability by deception had been dealt with. Thus 33 counts of other offences were asked to be taken into consideration.

2. The agreed facts were that the applicant arrived in Hong Kong in September 1985. Between November 1985 and March 1986 he committed all these offences. He obtained valuable goods, mostly in the form of jewelleries and ornaments by giving what are called "bouncing cheques". He then lost no time in pawning them at a substantially reduced value and he spent the money. He was sentenced to 2½ years in respect of each of the 6 offences to run concurrently.

3. In his reason for verdict the trial judge referred to his allegation of mental illness. Before passing sentence the judge considered two psychiatric reports and the probation officer's report. Those reports indicated that the applicant suffered no psychotic illness and no psychiatric treatment was required. However both doctors confirmed that he had a personality disorder brought about by excessive drinking of alcohol.

4. He was convicted in England for a similar offence for which he was awarded a sentence of 6 months to be suspended for 2 years. He repeated another similar offence. He left England while he was on bail before trial. The judge remarked that it was a systematic conduct of dishonesty. He said:

"I took the view that the accused had embarked upon a systematic course of dishonesty which had resulted in considerable loses to his victims. Apart from his plea of guilty there were no redeeming features and that an immediate custodial sentence was called for."

5. The antecedent report and the probation officer's report reveal that he is the only son of the well-to-do family. He has one elder sister. He is 27 years old by now. His mother died when he was 12 years old. Since then his father, being busily engaged in his own business, took very little interest in him apart from showering him with money. He was a problem child in fact while he was in school. He had very little sense of responsibility. He had poor academic performance. He could hardly hold a job for any length of time although past record showed that he is a fairly intelligent person. Unfortunately he used his intelligence in a distorted way.

6. When he came to Hong Kong in September 1985 he obtained a job as an apprentice export manager at a salary of $10,000 a month. He had money remitted to him by his father from time to time while he was carrying on this course of dishonest conduct. The remittance from his father only stopper after he was arrested by the police.

7. In his plea in mitigation he repeated his alcoholic problem, that he had been frank and honest with the Court and that he had a personality problem due to alcohol. He went on to reveal all his past offences in England, how he came to Hong Kong and his father had now lost his business. He pleaded for a suspended sentence.

8. The grounds of appeal which he drafted personally suggested that the medical report about him by the two psychiatrists were inadequate because the two doctors paid very little regard to his alcoholism.

9. His counsel has said all that can be said for him. We now know that the total sum he defrauded amounted to $149,000 if all the other offences are taken into consideration. However it was emphasized that his course of conduct in Hong Kong was not a premeditated attempt. He was not operating with a gang but by himself. His course of conduct was affected by excessive drinking of alcohol.

10. These are the only grounds that are now advanced by counsel who suggests that 2½ years is manifestly excessive. A fair number of cases had been cited to us. In Garthwaite ⁽¹⁾, the applicant was convicted of similar offences but all goods were recovered. The applicant in that case also had 4 similar previous convictions in the United Kingdom. The sentence of 3 years was reduced by this Court to one of 2 years.

11. In the case of Oyalowo and another ⁽²⁾, the applicant came to Hong Kong with a friend. Both used stolen credit cards which indicated preme ditated and planned fraud. The amount defrauded came to about $49,800. All the goods were recovered. This Court reduced the sentence from 18 months to 12 months. This Court indicated that 18 months would be a perfectly proper sentence. However having regard to another case which was decided in 1982 when a sentence of two years and nine months was reduced to 9 months, we took that into consideration and reduced the sentence to one of 12 months.

12. In the case of Blancaflor ⁽³⁾, it was also a planned fraud. A group of persons used stolen credit cards. Goods to a total value of $8,000 were obtained. A sentence of 21 months was confirmed.

13. In the case of Stannard ⁽⁴⁾, the applicant was convicted of obtaining goods defrauded by the use of stolen credit cards to the value of $80,000 and had 53 offences to be taken into consideration this Court confirmed a sentence of 12 months imprisonment. However, the special feature of that case was that the offences took place in 1981. In the meanwhile, the applicant had served a period of imprisonment while he was in Taiwan.

14. Having regard to all these authorities we are of the opinion that a period of 2½ years imprisonment is high but it cannot be said that it is manifestly excessive. The trial judge gave a discount for the applicant's plea of guilty but did not refer to the feature of personal disorder brought about by the applicant's alcohol problem. We do not find that the judge was wrong. We give some allowance that the applicant had a sad life although mostly self-induced. As an act of mercy we feel that we can reduce the sentence to 18 months on each count, all sentences to be concurrent. In this regard we have given the fullest allowance for his personal disorder.

15. We have been addressed by counsel for the Crown that this is a suitable case for recommendation for deportation. Indeed it might be better for the applicant to be sent back to his place of origin. In Hong Kong there are shops which, for commercial practice, easily lend themselves victims of such fraud. It would be too great a temptation for him to repeat such an offence. However, we are given to understand that whether we make any recommendation or not the discretion is in the hands of the Immigration Department. Whether we make any recommendation or not may be academic. We will not then, for that reason, make any further order.

(1)    Crim. App. 566 of 1977

(2)    Crim. App. 90 of 1985

(3)    Crim. App. 294 of 1986

(4)    Crim. App. 256 of 1986

Representation:

Mr. Spicer (D.L.A.) for Appellant

Mr. Harris (Crown Prosecutor) for Respondent