The Queen v. Chan Siu Sing

CACC000403/1988

BETWEEN

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Coram: Hon. Hunter & Power, JJ.A.

Date of hearing: 19 January 1989

Date of delivery: 19 January 1989

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J U D G M E N T

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Hunter, J.A.:

1. Chan Siu Sing seeks leave to appeal from sentences of 5 years imprisonment imposed upon him by H H Judge Corcoran on 5th August 1988. He first appeared before that judge on 20th July when be pleaded guilty to 18 charges. They were all specimen charges, and they fell into 3 groups.

2. First, there were 10 charges of procuring the execution of a valuable security by deception, contrary to section 22(2) of the Theft Ordinance. Those charges all related to the execution of false letters of credit, in respect of which there were no genuine underlying transactions. The maximum penalty prescribed for offences under section 22(2) is 7 years.

3. Secondly, there were 5 charges of forgery with intent to defraud contrary to section 72(1) of the Crimes Ordinance. These related to the forgery of documents used in support of the false letters of credit. Those offences carry a maximum penalty of 3 years.

4. Finally, there were 3 charges of forgery of a valuable security with intent to defraud, contrary to section 70(2)(a) of the Crimes Ordinance which carries a maximum penalty of 14 years. Those offences related to the forgery of cheques used in support of these bogus letter of credit.

5. All these offences stemmed out of the applicant's employment by a Company called Sze Fung Financial (HK) Co Ltd which was owned and controlled by a man called Lam Ching. Lam Ching later pleaded guilty before Honkinson J to 18 counts in an indictment of a character similar to the charges to which this applicant pleaded guilty. When his application for leave to appeal against a total of 9 years imprisonment came before and was dismissed by this Court, Cons, V.-P. said this :

"During a period of almost 3 years he (Lam Ching) had used that Company. (Sze Fung) systematically to plunder banks and financial houses by means of fraudulent applications for letters of credit in relation to transactions which were completely fictitious".

6. As the trial judge explained in his reasons for sentence, Lam Ching was "the principal instigator and organiser of these offences; and he was the accused's boss and proprietor of Sze Fung". The trial judge then referred to a total of HK$73m as being involved in the defraud. That may well be an underestimate because the Court of Appeal judgment gives us a figure of "in the region of HK$111m".

7. Then in his reasons these chilling statistics appear. The total of the money obtained as a result of the offences in the charge sheet was (and I only use one place of decimals) HK$6.1m. The accuser asked the court to take 450 other offences Into consideration in passing sentence. In all the accused was involved in fraudulent transactions in which the victims lost a total of HK$29.2m. The accused forged 93 cheques to total value of HK$19.8m, and was involved in 61 fraudulent applications for letters of credit".

8. In describing the relationship between the accused and Lam Ching, the judge proceeded:

"All the proceeds from these, fraudulent transactions went to Lam China. The accused and other employees were used by Lam Ching and apparently did not get anything financial out of what they did. Except for the parties to which he was invited, and the apparently important de facto status he appeared to enjoy in the Company, the accused got nothing".

His nominal status with the company was that of a messenger. Judge goes on:

"However without the accused willing assistance, his forgeries and other fraudulent acts, Lam Ching could not have completed the fraudulent transactions to which the charges related"

9. The judge then goes on to record the factors that he took into consideration in imposing sentence for the offences to which the applicant pleaded guilty, taking into consideration the other 450 offences. They were, first, the applicant's clear record: second, the applicant's plea of guilty: and third the applicant the part in the fraudulent acts in these charges. I am proposing to read the judge a assessment of the applicant's part because no word of criticism has been directed at it in this court and it seems to us to set out the judge assessment of the position with great precision and fairness. He says:

"I accented that the accused was used and manipulated by Lam Ching. Lam Ching would have put pressure on the accused to assist him in his frauds. Lam was educated, (and) the accused's employer. He was obviously a dominant personality and the proprietor of a financial company. The accused had little education and as a messenger. It is not difficult to see how he could he pressured and manipulated by the unscrupulous and utterly corrupt Lam. The accused would be easily 1ed to do the bidding of Lam, he would be carried at by the exalted status that he, messenger, was given inside the Company and the invitations to banquets etc.

The accused no doubt acted as instructed in the fraudulent applicants for fetters of credit, in the forging of the cheques and other documents referred to in the charges. Nevertheless he was fully aware of what the was doing. He must have known that he was involved in, and was helping Lam Ching to perpetrate, large frauds. He must have known he was forging these cheques for these large amounts, that he was acting dishonestly and assisting Lam to cheat and defraud others. While there may be mitigation in his plea that he was used and manipulated by Lam Ching, in the circumstances of this case, this could not excuse what he did".

The only word that Mr. Sceats seeks to criticise in that is the word "excuse" in the last sentence, We do not agree. The judge was the saying no more than "this cannot he a total excuse". That is transparently correct. He then goes on:

"The total value of the loss to the victim of the offences in the charges on the charge sheet was HK$6.6m.  I considered that the appropriate sentence for these offences in all circumstances of the case, including the accused's minor role and his being led by Lam Ching and other mitigating factors put before me, but excluding the plea of guilty, was seven years. I allowed a reduction of 2 years for the plea of guilty."

By that route he arrived at his sentences of 5 years.

10. As I have indicated Mr. Sceats, who has said everything that could possibly he said on behalf of the applicant, is unable to criticise the fairness an accuracy of the Judge's description of his client's position in relation to Lam Ching and in his Company. He is likewise unable to criticise that 2 years discount. He concentrates his criticism on the starting figure of 7 years which he invites us to say is too high. He accepts that this is a case where the court can only apply the totality principle. It is absurd to start contriving consecutive sentences in case like this. The court has to do its best to assess the totality of the applicant's criminality. At one stage in his argument Mr. Sceats sought to rely upon a nit worst e argument. This argument may have force when a court is dealing with one offence or a group of offences, arising under a particular Ordinance, which prescribes a particular maximum. But it has very little meaning where one is dealing with a very large number of offences with three different statutory maxima. As the argument proceeded, Mr. Sceat concuded that really he was inviting it the court to view the totality of the criminality in this case and particularly to compare the total criminality of the applicant with that of Lam Ching.

11. As I have already indicated Lam China was sentenced by the court to a total of 9 years Imprisonment. His anneal against that sentence was rejected by this court only about a week before judge Corcoran came to impose his sentences. Although he does not expressly refer to it in his judgment, the figure was mentioned in the papers before him, and we have been told that the counsels note records that he was Informed of the decision of this court.

12. When drawing his comparison between Lam Chin, and this applicant, Mr. Sceat makes four principal points. First he says that Lam Chink was the mastermind and the instigator. Secondly, he said that he was concerned with the whole of that fraud, and the figures involved in that were something in excess of HK$110m; that Lam Ching's own gain was put between HK$21m and HK$27m; and Lam Chine as asking for 1782 other offences to he taken into consideration. Thirdly by reason of the fact that he had gained substantially himself, it can be said against Lam Ching that he was in a position to make restitution and had failed to do so. Fourthly, it is said that because he had absconded initially he did not plead guilty to the offences at the earliest possible moment Mr. Sceats says that there are therefore major differences in the criminality of these two principals Lam Ching and the applicant. Indeed as to that proposition there can be no question at all. There are major differences and those major differences were, from what I have already read, very much in the mind of the trial judge. The whole issue for this Court is whether his sentence of 5 years sufficiently reflects these major differences in criminality.

13. The first Point to be made, we think, is that the only comparision that can be made is between the actual the sentences imposed is 9 years on Lam Ching, 5 years on this applicant. This court is in no position to speculate what starting figure either Hopkinson J or this Court had in mind in the case of Lam Ching.

14. Second Point is that despite these major differences in criminality there can be no doubt that this applicant was deeply involved in very serious criminality. The chilling statistics speak for themselves: 93 cases of forged cheques, each of which would nominally carry a maximum of 14 years imprisonment. The total numbers are less, but this is not a case of measuring degrees of criminality simply by figures.

15. Thirdly, where a court is called upon to assess degrees of criminality, it has to exercise a difficult judgment. It is one of those areas of judgment where no one can say that any figure is necessarily correct. There are inevitably a range of figures which an appellate court cannot criticise. This court, looking at this matter as best it can, and looking at the matter anew, would feel quite unable to assess this applicant's degree of criminality at less than half that of Lam Ching, taking all these factors into account. In other words, if we were looking at the matter afresh, we could feel quite unable to impose a sentence of less that four and a half years. That being the view we take, it is quite impossible to say that Judge Corcoran, making, his own assessment and arriving at a figure only slightly higher than that, imposed sentences which were manifestly excessive.

16. In those circumstances, this court cannot properly interfere with the total sentences imposed by the trial judge; and the application fails and must be dismissed.

Representation:

Barry Sceats (DLA) for Applicant

A A Bruse for Crown/Respondent