Chan Pui-ching v. The Queen

CACC000059/1982

BETWEEN

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Coram: McMullin, V.-P., Li, J.A. & Bewley, J.

Date: 25 May 1982

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JUDGMENT

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McMullin, V.-P. :

1. The applicant was convicted after trial upon 15 charges. The charges are arranged in the following way. The events out of which they arise were five in number. There are five charges of theft and linked to those are charges of forgery of sales receipts and charges of uttering the same receipts.

2. The applicant was employed as a salesman by the Afasia Co. He had worked for them for some 18 months. It was the practice of the company and part of his duties that he would take gems into his custody on behalf of the company and seek buyers amongst retail shops. The gems with which all these charges were concerned were diamonds.

3. On five separate occasions between the 3rd of April and the 26th of June 1981, he took quantities of these diamonds and issued to the company receipts with forged chops purporting to show that he had found buyers for them. These acts occurred on the 3rd of April, on the 14th of April, on the 16th of June, on the 24th of June and on the 26th of June. In fact, there were no buyers for the stones which were the subject of these representations.

4. The company's practice was to allow retail purchasers of their wares 60 days latitude by way of credit during which they would consider the gems consigned to them and either sell them themselves or arrange about their return. That meant that an agent in the position of this applicant had some 60 days himself during which he was in a position of trust and during which period it was possible to do what the applicant did in this case.

5. What he did was to pawn these diamonds with another person and then reassure the company by the forged documents that the diamonds were safely in the custody of an alleged buyer. There were two diamonds involved in the 1st charge relating to the 3rd of April; one in the 2nd charge relating to the 14th of April; two in the 3rd charge relating to the 16th of June and in the last two charges he is charged with the theft of a quantity of diamond chips allegedly also sold by him on behalf of his company.

6. These charges were tried and he was convicted. In passing sentences of 3 years concurrent upon all counts, the judge referred to the facts proved before him as constituting a carefully executed and deliberate series of frauds over a period of 2½ months which indeed they did. He noted the fact that the diamonds had been pawned for a fraction of their true value. That is the case. The total value of these gems, it appears, is about $480,000.00. The money raised from the money-lender was about $150,000.00. The judge noted that he had not been informed of what had happened to that money - the $150,000.00.

7. Mr. Whitehead for the applicant firstly makes the point that the sentences imposed should be considered as being at the upper limit of the bracket applicable to this kind of commercial fraud. He refers us to Criminal Appeal 1190 of 1979 and Criminal Review No. 13 of 1975. Those cases, however, are not of material assistance except in so far as to support his contention that the range of sentence indicated for this kind of crime is somewhere between 21 months and 3 years.

8. In Criminal Appeal No. 1190 of 1979 a sentence of 3 years was reduced upon appeal to 2 years and Mr. Whitehead points out that in that case, as in the present case, the court noted that the defendant had been subjected to a considerable degree of temptation. It is that factor which he enlists when criticizing the sentences imposed by the judge in the present case. Although he concedes that the judge did refer to the factor of temptation, he alleges that not sufficient weight was given thereto. Mr. Whitehead also drew our attention to the fact that this comparatively young man had served in the gem trade for about 10 years with another company and had not fallen into any trouble with the law.

9. We do not know in detail what his tasks were in his former employment but it is said, and there is no reason why we should doubt it, that he had the handling of jewellery in some form.

10. Next it is said by counsel that his client was 18 months in the employment of Afasia before any trouble arose. In connection with that point, Mr. Whitehead sought to put before us circumstances which his client had put at his disposal prior to the hearing of this appeal but which had not been drawn to the attention of the court at trial. Those circumstances purported to show that the applicant had been confronted with a sudden exigency through the dishonesty of other parties which had propelled him into this series of offences. We did not hear counsel further on this matter once the nature of the contention was clear. This was clearly a matter that ought to have been put before the court of trial especially since there was a trial and not a plea of guilty. It has not been suggested that we should receive evidence upon it here nor indeed would we have greeted any such application with any favour. A matter of such obvious importance in favour of the defendant could not have been overlooked at the court of trial and we do not propose to place any weight upon the suggestion here. The judge in saying that he had not been informed how the $150,000 was disposed of was doing so at the conclusion of the trial in which presumably all the facts which defence wished to put before the court were in his possession.

11. The element of trust in the case is evident and the most that counsel has been able to say, and the furthest he has put his contention, is that these sentences might be considered as being at the upper limit. Whatever be the truth of that, we are satisfied that the sentences cannot be considered as in excess of the norm to such an extent as would require this court to intervene even although it might be that any individual member of this court might have considered smaller sentences.

12. For these reasons and notwithstanding the able and eloquent plea on his behalf by Mr. Witehead, we think that this application must be refused.

Representation:

Robert Whitehead (T.M. Chow & Co.) for the Appellant

B. Moorfoot, for Respondent/Crown