The Queen v. Ho Yim Sun

CACC000408/1988

BETWEEN

Coram: Hon. Hunter, J.A. & Macdougall, J.

Date of hearing: 22nd December, 1988

Date of delivery: 22nd December, 1988

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J U D G M E N T

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Hunter, J.A. :

1. The applicant Ho Yim Sun seeks leave to appeal against his sentences imposed on 18th August 1987 of 4 years imprisonment concurrent on each of 5 charges of obtaining. property by deception. The sentences followed his plea of guilty to those 5 charges before H H Judge Corcoran.

2. They were serious cases of deception. The first charge related to a purchasing fraud. The applicant was then conducting business under the trade name of Furai International Trader. He purported to buy a large number of table cloths to a total value of over a quarter of a million dollars. On 26th April 1983 he obtained the delivery of the cloths against a post-dated cheque for over $234,000. The cheque was post-dated to 10th May and was always worthless.

3. Charges 2, 3, 4 and 5 were connected. They involved the fraudulent acquisition of shares in Public companies. The fraud was perpetrated with the assistance of a man named Chan Lin Sane, who succeeded in obtaining employment as a broker at a securities company. That happened in late May 1983. The applicant stood guarantor for him when Chan got the job. Together the two obtained two tranches of shares. On 13th July two parcels in Cheung Kong Holdings and Hutchison were purchased by Chan on the alleged instructions in one case of the applicant personally and in the other of a company called Prosperous Enterprise. The relevant share certificates were handed over by Chan to the applicant the next day, the 14th of July, in exchange of what proved to be two worthless cheques. The same practice was repeated on 14th July in respect of two further parcels of shares in the same companies. Those share certificates were handed over the next day against two further worthless cheques. As soon as the share certificates were available the shares were on sold to innocent buyers. The total sum realised on the sales was $623,000.

4. In due course the applicant was arrested and charged. He absconded from bail. There was another a defendant who was concerned with a share transaction of not the dissimilar nature who was charged at the same time. He stood his trial in February 1984 before Judge Eric Lee. He was convicted and sentenced to 15 months' imprisonment. After 5 years the applicant repented and surrendered to the authorities. When the matter came on before H H Judge Corcoran he pleaded guilty to the 5 offences.

5. As we have already said these were serious frauds, carefully thought out, planned and carried through. In the court below it was asserted upon the applicant's behalf that the instigator was Chan. The only positive evidence (if it could be so described) in support of that suggestion is the fact that Chan was aged 28 at the time the applicant 25. But from the nature of the share frauds that we have already described they were in our view plainly a joint enterprise.

6. Two mitigating factor in the applicant's favour were considered before the trial judge. In the first instance, there was his plea of guilty. The judge was also invited to have regard to the discomforts he had alleged to have suffered during the intervening five years and to his subsequent surrender . The last two were largely self-induced : the discomforts followed his absconding, the surrender followed his discovery, if in fact he had suffered hardship, that being a fugitive was not the answer. We are minded to agree with the trial judge that the real credit to which he is entitled is his plea of guilty.

7. The second feature going in mitigation is the fact that this was his first offence. He was aged only 25 and was then at an age when perhaps it is easier to be overtaken by, greed which was the most likely explanation of these offences.

8. It was in these circumstances that the judge directed his attention to the totality of these offences. It certainly would have been open to him to have split them up into two parcels, because the first offence, the purchasing fraud, was quite separate and distinct from the next four. We do not criticise him for not doing that. He properly directed his mind we think to totality. He said that he was minded to give a 6 months' discout for the plea and 6 months' discount for the age and clear record, making a total of 12 months. It must follow from that, that his starting point was 5-years which he reduced to 4. The question to our mind is whether that 5 year starting point was right or whether it was too high

9. Reference has been made by the applicants to his understanding of other decisions in other courts in Hong Kong. Some of the cases to which he referred are we think more familiar to individual members of the court than perhaps to him. We say familiar in all their ramifications because any sentence in any case involves a court s determination in relation to the particular facts of that case. That sort of exercise here is of very little value. So one comes back to the question was this starting of five years reasonably proper one or was it too high?

10. After giving the matter very careful consideration we have come to the comclusion that it was unduly severe, and that a starting point which fully reflected all the circumstances in this case would more appropriately had been 4 years. We have no criticism of the discounts allowed by the trial judge, and if he had started at that figure he would have imposed total sentences of 3 years in this case. In those circumstances we allow this application, treat it as the hearing of the appeal and reduce the sentences on each of the charges to one of 3 years concurrent.

Representation:

Applicant in person

Stephen Wong Crown Counsel, for Crown/Respondent