R. v. Leung Kwok Fan, Danieal

CACC000509/1994

IN THE COURT OF APPEAL

1994, No. 509
(Criminal)

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Coram: Hon Yang, C.J., Power, V.-P. and Penlington, J.A.

Date of hearing: 4 April 1995

Date of judgment: 4 April 1995

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J U D G M E N T

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Hon Yang, C.J.:

1. The applicant was convicted on his own plea of a total of 37 charges and he was sentenced to a totality of four years' imprisonment. This morning he abandoned his application for leave to appeal against conviction but proceeded with his application for leave to appeal against sentence.

2. In his submission to us, he stresses that he was only 19 years of age at the time of the offences; that he committed the offences because he had failed in his business due to inexperience. He also urges upon us the fact that his mother is 60 years old and that he is married with a daughter; as his wife is earning only $7,000 a month, the family is in financial difficulties.

3. He then says that he has already been in custody for one year before sentence was passed. If this is indeed the case, then we are sure the Correctional Services Department will take that into consideration when computing the exact length of his custody.

4. The 37 charges to which he pleaded guilty comprised five different offences. The first group comprised 31 charges of obtaining property by deception (Charges 1 - 16, 21 - 32, 34 - 36). The second group comprised one charge of obtaining services by deception (Charge 17). The third group comprised three charges of evasion of liability by deception (Charges 18, 19 and 20). The fourth group related to one charge only, that of escaping from lawful custody (Charge 33). The fifth was a charge of resisting police officers in the due execution of their duties (Charge 37).

5. The majority of those charges alleged that the applicant ordered goods and paid for them by cheques which were later dishonoured. The goods thus obtained were largely computers and printers, a television set, video cameras and two facsimile machines. Charge 17 involved the applicant paying for two nights at a hotel with a cheque which was later dishonoured. Charges 18 to 20 related to rent for separate business premises, paid by cheques which were later dishonoured.

6. The applicant was arrested on 3 August 1993 in respect of some of the charges and was released on bail. Charges 22 to 37 were committed after he had been let out on bail. He failed to answer bail at the District Court on 8 October and was arrested on 15 October. On 19 October, he escaped from police custody while in Queen Mary Hospital. Whilst at large he committed the offences alleged in charges 34, 35 and 36. The resisting police charge was committed when he attempted to escape from his arresting officers.

7. The total amount of property and services involved was about $700,000, of which about 10% was recovered from a friend's house. The applicant has seven previous convictions, three for dishonesty. On 31 May 1993, he was given a six-month prison sentence suspended for 18 months for an offence of obtaining by deception.

8. The judge adopted a starting point of 18 months' imprisonment for the bulk of the charges involving dishonesty. He reduced that to 12 months, giving credit to his plea of guilty and his youth. He also took into consideration that a number of offences were committed while he was on bail. Having regard to all the circumstances of the offences and the applicant's background, he imposed a totality of 3½ years' imprisonment and activated the six-month sentence which had been suspended for an earlier offence, thereby making a total of 4 years' imprisonment.

9. Nothing which has been said by the applicant this morning leads us to think that the sentence was either manifestly excessive or wrong in principle. These offences were committed over a period of time and all of these were well planned. The application must be refused.

Representation:

Applicant - in person

Mr D G Saw of the Attorney General's Chambers for Crown/Respondent