R. v. So Muk Chi

CACC000540/1994

IN THE COURT OF APPEAL

1994, No. 540
(Criminal)

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Coram: Hon Power, Ag. C.J., Litton, V.-P. and Bokhary, J.A. in Court

Date of hearing: 3 May 1995

Date of judgment: 3 May 1995

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J U D G M E N T

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Litton, V.-P. (giving the judgment of the Court):

1. This is an application for leave to appeal against sentence. The applicant So Muk Chi pleaded guilty before His Honour Judge Jackson in the District Court on 13 charges of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance. He was sentenced to serve a total of three years and four months, those being the sentence imposed on each of the charges to be served concurrently. The appellant was 37 years of age at the time of his conviction.

2. The offences occurred in July 1990. The applicant was then the registered sole proprietor of Yee Fung (Group) Enterprises which purported to carry on business at Room 2004, Fortress Tower, King's Road, North Point. Warehouse space was leased as well. Bank accounts were opened with the Standard Chartered Bank and Overseas Trust Bank. Goods of various descriptions were ordered from a number of suppliers: wrist watches, radios, cassette players, cotton T-shirts, integrated circuit boards, telephones and leather belts. The office premises gave the appearance of a genuine business enterprise. The goods were paid for by cheque drawn on the two bank accounts, post-dated by a few days in almost every case to the 11th July 1990. They were all dishonoured on presentation.

3. When the suppliers went to the applicant's address at Fortress Tower the premises were empty except for a few pieces of furniture. The warehouse when raided by the police was also found to be empty. None of the stolen goods have been recovered. The invoice value of the goods totalled $2,173,563. The applicant absconded to China, crossing the border at Lo Wu on 11 July 1990. He eventually returned and surrendered to the police on 1 September 1993.

4. The judge considered this a case of blatant dishonesty, which it clearly was. The judge also said quite rightly: "Offences of this type are prevalent, and all too simple to commit with a little planning." The judge took a serious view of the case and adopted as his starting point five years' imprisonment after trial, but taking into account the guilty plea, the voluntary return to Hong Kong and surrender to the police, the applicant's responsibilities to a young family in China he imposed three years four months as the appropriate sentence.

5. Counsel for the applicant Mrs Wacks said in effect that the judge erred in principle in failing to give greater weight to the fact of surrender to the police and she has referred us to the case of The Queen v. Mok Sin-wah, Cr.App. 419/84 (31 October 1984) and in particular to the passage which says:

"The cooperation of an accused caught red-handed in assisting the investigating officers to arrest other persons involved in the same incident and the surrender of those who have got away but decide to face the music [should attract a discount]."

6. The proposition referred to by Mrs Wack is well-known. The facts of Mok Sin-wah, however, do not seem to fit wholly the circumstances of this applicant. As far as this applicant is concerned all that he did was eventually to return to Hong Kong without, it is now accepted, making any restitution of any of the proceeds of the fraud. This argument cannot succeed.

7. The other ground of appeal put forward is that the starting point of five years is too high. We wholly disagree.

8. The judge has not erred in principle in sentencing this applicant, nor is the sentence he imposed manifestly excessive. The application must be dismissed.

Representation:

Mr I.C. McWalters (Crown Prosecutor) for Respondent/Crown

Mrs Penelope Wacks (DLA) for Applicant/Defendant