The Queen v. Lee Wai-chun

HCMA001045/1985

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 1045 OF 1985

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BETWEEN

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Coram: Hon. Liu, J. in Court

Date of hearing: 16th December 1985

Date of delivery of judgment: 16th December 1985

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JUDGMENT

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1. This is an appeal against sentence. The appellant's appeal against conviction has since been abandoned. I am told the proposed appeal against sentence is out of time. In addition, further ground of appeal against sentence are sought to be canvassed for the appellant.

2. The appellant was convicted on the 28th May of obtaining property by deception. The victim Mr. Lau was misled, swindled by a scheme put to execution with remarkable success by the appellant with the 2nd defendant. As a result, both his vehicle, keys and documents of transfer changed hands. Hence the appellant together with the 2nd defendant were charged, summonsed and subsequently convicted. Both the appellant and the 2nd defendant also adopted a devious manoeuvre whereby an amount of cash equivalent to the purchase price was withdrawn from the bank account just to give a terribly false impression that payment of the victim's car had been duly effected.

3. The appellant was convicted in 1983 for passing forged documents and sentenced to six months, suspended 18 months. In 1984, apparently involved in another deception to the extent of $1,800, he was convicted and fined. The suspended sentence was not activated as the then learned magistrate expressly ordered it not so to be re-activated.

4. No Probation Report was obtained at the conclusion of the proceedings before the learned magistrate in this case, and the appellant was sentenced to 18 months imprisonment. But for the present development, there would appear to be no justification for suggesting the sentence passed as being inappropriate.

5. I am told that the 2nd defendant's sentence has been reduced from 18 months to 9. It has been conceded by the Crown that the involvement of the two defendants was the same. It is not suggested that the material parts of the Probation Reports of the appellant and the 2nd defendant differ significantly, so much so that counsel for the Crown has conceded that if I were to grant leave to appeal out of time and leave to argue further grounds on appeal against sentence, she would find it difficult to support the sentence of the learned magistrate.

6. Mr. Wong, counsel for the appellant explained to the Court circumstances which could have caused and, according to counsel, did cause the delay. I am inclined to accept counsel's statement. Hence, I would grant leave to appeal out of time against sentence. I see no inherent objection to acceding to the request of counsel for allowing the additional further grounds of appeal against sentence to be argued, and I do give leave for counsel so to do.

7. It is not necessary for me to go into the specific grounds proposed to be argued by counsel for the appellant. I am content to be guided by the concession of counsel for the respondent. Indeed, I can now see good sense for the concession despite the fact that I was impressed by the magistrate's well-reasoned determination. The further grounds together with the grounds of appeal of the appellant are, in essence, unchallengeable in the light of the revelation. Indeed, with no appreciable difference between these two cases, disparity between the sentences to be dealt to these defendants would inevitably cause an unpardonable sense of grievance.

8. In the circumstances, this Court is virtually driven to accede to the request of Mr. Wong, counsel for the appellant, in allowing the appeal to the extent that his sentence be reduced from 18 months also to 9 months.

9. I order:     1.    Leave to appeal out of time against sentence be granted.

2.    Leave be granted to argue additional grounds.

3.    Appeal allowed to the extent that sentence be reduced to 9 months.

Representation:

Mr. F. Wong instructed by Messrs. R.J. Oliver & Co. for the Applicant

Miss Ida Cheung, Sr. Crown Counsel for Respondent/D.P.P.