The Queen v. Wong Siu Chun

IN THE COURT OF APPEAL

1987 No. 33
(Criminal)

BETWEEN

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

Date of Hearing: 23rd April 1987

Date of Judgment: 23rd April 1987

__________________

J U D G M E NT

__________________

Hunter, J.A.:

1. On 5th January of this year the applicant pleaded guilty to 5 counts of obtaining services by deception and 4 of obtaining property by deception. He tendered that plea before Judge Roy in the Victoria District Court. In consequence he was sentenced to a term of 2 years and 6 months on each count concurrent. From that sentence he now seeks leave to appeal.

2. The story that lies behind those pleas is a fairly simple one. At that stage he was running what is described as a substantial and established jewellery business. But he was unable to run the business upon the generous credit facilities that were apparently being offered to him by 3 banks:   The Bank of East Asia, Wayfoong and B.C.C.I. Finance. So he resorted to fraud. All three banks were offering him discounting facilities. In order to get more credit than the banks were apparently willing to give him with knowledge, he invented or created 4 bogus companies. They then entered into fictitious purchases with his jewellery company and made out in support of those transactions, bogus invoices and bogus cheques. He also used 3 genuine companies and created bogus transactions for those to enter into. The total sums involved we are told were $4.85 million of which $2.85 million has been recovered. So the net deficit was $2.01 million which is almost exactly the total of the 9 charges to which he pleaded guilty. The total of those charges is in fact $2.1 million. The period of time covered by these events is October 1981 to August 1982.

3. He in fact left Hong Kong in January 1983 for United States, leaving this indebtedness behind him. He was extradited from United States in August 1986 having been arrested there in February of that year. He spent 6 months in custody in United States because he was resisting extradition.

4. Now the only thing that could really be said in his favour in respect of these matters is that there was a genuine business being conducted. This was not simply the type of fraud of the man obtaining money without any underlying business transaction. This was a case of a man using fraud to persuade the banks to lend him money which they would not otherwise have lent. No doubt he expected to be able to repay all these illicit borrowings but he in fact completely failed, to do so. That is revealed by the figures that I have already given.

5. The only other thing that could be said in his favour by way of mitigation is that he pleaded guilty and that he had a clear record. Also he has apparently offered his services as a witness if certain future prosecutions take place.  But that is at the moment all prospective and uncertain.

6. The trial judge founded particularly upon the decision, of this, Court in R v Wong Hoi(1) where in circumstances by no means dissimilar to those before us in this case, this Court declined to intervene with the sentences of two years and nine months passed in that case.  Judge Roy took comfort from two matters.

7. First of all in that case it was suggested that a discount should be given for the fact that the applicant in that case had spent four and a half months in United States arising out of extradition proceedings. Judge Roy read this decision as indicative that this was not a matter which he could take into account at all. That this is in fact not the true reading of that decision was made clear by another division of this court earlier today in the decision of Attorney General and Shamsudin(2).  That decision shows that this is a matter of discretion as to the extent to which the court has regard to and gives credit for any period of imprisonment abroad arising out of extradition or of similar type of proceedings. So to that extent the judge may have misread the decision in Wong Hoi(1).

8. Equally I think he misread the decision as an indicative of the appropriate level of sentence in this type of case. Because what my lord Silke J.A. said in giving the judgment of the court in that case was that sentence was a very generous one. So in effect the judge in this case had arrived at a very generous sentence without considering the extradition credit at all.

9. For my part I can see no reason whatever for concluding that this sentence is in any way excessive. I would not give this man any substantial discount or credit for a period of imprisonment in United States to which he resorted after committing these offences, extended by his attempts to resist extradition. The total sentence here of two years six months is, if anything on the low side. We have considered rather carefully whether we should not exercise our powers to increase it. But in balance we have decided that the fairest thing to this applicant is not to interfere and to reject this application.

E.C. Mumford., Q.C., Jason Pow (m/s Poon & Dissanayake) for Applicant

M.A. McMahon, Crown Prosecutor for Respondent

(1)  Cr. App. 354 of 1985

(2)  1987, No. 3, Application for Review