The Queen v. Ying Lai Chau

CACC000559/1989

BETWEEN

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Coram: Hon. Sir T.L. Yang, Power and Macdougall, JJ.A.

Date of hearing: 29 June 1990

Date of judgment: 29 June 1990

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JUDGMENT

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Macdougall, J. A.:

1. The applicant pleaded guilty before Judge Corcoran in the district court to 20 charges of obtaining property by deception and was sentenced to four years of imprisonment on each charge, the sentences to be served concurrently. He now seeks leave to appeal against those sentences.

2. The facts were that over a period of 4 1/2 months he obtained from the photographic appliances company at which he was employed as a sales representative 684 Yashica cameras valued at $466,175 by falsely representing that they had been purchased by various photographic supplies retail outlets. In order to carry out this scheme of deception he used forged chops of those companies on invoices submitted by him to his company in respect of the purported sales. None of the cameras was ever recovered.

3. After he left the employment of the victim company he wrote a letter to it admitting his culpability. He then left Hong Kong and was absent for some 14 months. On his return he was arrested at the Macau Ferry Terminal and under caution admitted his guilt.

4. In mitigation he pleaded that he had been under pressure to commit these offences owing to indebtedness to loan sharks in respect of loans he had raised to settle his gambling losses. He claimed that the loan sharks had threatened him and his family. He had a clear record and expressed a desire to pay compensation. However at no stage did he attempt to do so.

5. The judge expressed the view that in the light of the applicant's breach of his position of trust, the number of offences committed, the period over which they had occurred and, the careful planning and execution of the scheme with the use of forged chops, the starting point for sentence was six years. After taking into account all mitigating factors he considered that an overall sentence of 4 years was appropriate.

6. Mr. Mitchell, who appeared before us and in the court below, submitted that the judge had erred in adopting a starting point of 6 years and that he failed to attach sufficient weight to all the mitigating factors.

7. He referred us to the well known case of R v. Barrick (1985)81 Cr. App. R.83 in which the Court of Appeal in England made certain suggestions as to the proper sentence to be passed in cases of theft and fraud where a person in a position of trust had used that privileged and trusted position to defraud his partners or clients or employers or the general public of large sums of money.

8. In order to lead to a little more uniformity in sentencing than had hitherto been evident the Court suggested a scale of sentences that related to the amounts involved.

9. Mr. Mitchell submitted that, applying the scale to the present case, the applicant should have received a sentence of less than 2 years. There are two matters that we wish to make clear. First, in delivering the judgment of the court in Barrick, Lord Lane emphasised that the court appreciated that it was dangerous to generalise because the circumstances of the offender and the offence may vary widely from case to case. He stressed that the sum involved was obviously not the only factor to be considered. Second, the suggested sentences - and they are nothing more than that - are relevant to social and economic conditions in England. As such they have no application to Hong Kong.

10. We take the opportunity of emphasising what Silke J.A. (as he then was) said in delivering the judgment of this Court in The Queen v. Cheung Hing-biu [1984] HKLR 87 at 93:

"There has grown up over the years, and in particular since the constitution of the Criminal Division of the Court of Appeal, a corpus of practice and procedure, in conformity with the common law, peculiar to the environment in which we live. The quantum of sentences is an example. English cases have often little relevance as to that and text books such as [Principles of Sentencing by D.A. Thomas] whose principles are distilled from sentences imposed in English cases and from the effect of statutory enactments are often not of great assistance."

11. We respectfully agree, however, that the factors referred to by Lord Lane at page 82 as being matters to which a court would no doubt wish to pay regard in determining what the proper level of sentence should be, are of as much relevance in Hong Kong as they are in England. For convenience of reference they are as follows:

"(i) the quality and degree of trust reposed in the offender including his rank; (ii) the period over which the fraud or the thefts have been perpetrated; (iii) the use to which the money or property dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect on fellow-employees or partners; (vii) the effect on the offender himself; (viii) his own history; (ix) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police."

12. Mr. Mitchell also cited to us three Hong Kong cases in which sentences lower than those imposed in the present case were passed. We have stated on several occasions (see The Queen v. Ho Yim-sun Crim. App. No. 408 of 1988, The Queen v. Wan Ho-hung Crim. App. No. 342 of 1988, R. v. Cheung Ming-lim [1989] 1 HKLR 415 at 417 and Attorney General v. Jim Chong-shing [1990]1 HKLR 131 at 148-149) that decisions on sentencing are no more than examples of how a court has dealt with a particular offender in relation to the particular circumstances of his offence. They may be useful as an aid to uniformity of sentence but they are not authorities or binding precedents. Even where this court suggests guidelines for sentences the sentencing judge may depart from them if the particular circumstances of the case justify such a course.

13. As Dunn L.J. said in R v. De Havilland (1983)5 Cr. App. R. (S) 109:

"The vast majority of decisions of this court are concerned with the facts and circumstances of the particular case before it and are directed to the appropriate sentence in that case. Each case depends on its own facts."

14. Having considered everything that has been urged on us by Mr. Mitchell we have come to the conclusion that the judge was entirely justified in imposing an overall sentence of 4 years imprisonment. This was a calculated scheme of deception carried out over a substantial period of time and it involved a serious breach of trust. In our view it is of little avail to the applicant to plead that he had fallen into the hands of loan sharks as a consequence of his gambling activities. The sentences were well merited. The application is therefore refused.

Representation:

Mr. Bailey for Crown Prosecutor

Mr. Neil S. Mitchell assigned by D.L.A. for applicant