Wu Cheung Yip v. The Queen
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CACC001123/1979
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----------------- Coram: Roberts, C.J., Pickering, J.A. & Leonard J. Date of Judgment: 11 March 1980 ----------------- JUDGMENT ----------------- Pickering, J.A.: 1. In this case, the Appellant, an electrical contractor appeals against concurrent sentences totalling 2 years' imprisonment in respect of charges of conspiracy to defraud the Hong Kong Telephone Company. The frauds were effected in conjunction with employees of that company who are named as co-conspirators, and took the form of the submission of tenders by the Appellant for work to be done for the company; those tenders were inflated by the co-conspirator into whose hands they first habitually came; thereafter, the inflated tender was further inflated by another 15%. A tender in the doubly-inflated amount was then made by the Appellant and accepted. The work was in each case satisfactorily performed and payment in the inflated sum was made to the Appellant. From the inflated sum he deducted his original tender price and passed the balance to employees of the Telephone Company, his co-conspirators sharing the balance between them, this to the extent of some $59,000 in total. An embellishment in the case of the 3rd and 4th charges was that the Appellant not only submitted his own tender but also tenders on note-paper of other electrical contractors, those tenders being, of course, in excess of the amount of his own tender. It transpired, therefore, that the people who made the excess money were the co-conspirators, the employees of the Telephone Company. The Appellant secured certainty of being awarded the contracts but made no profit over and above his normal legitimate profit. 2. He was sentenced on the first two charges to 18 months' imprisonment and on the embellished 3rd and 4th charges to 2 years' imprisonment, all the sentences to run concurrently. 3. Mr. Bleach, for the Appellant, referred to the relative criminality of the conspirators in this case and it does appear that the scheme was devised by the employees of the company, that some pressure was put upon the Appellant in the form, as the Chief Justice has put it, of "If you go along with us, you will get the contracts. If you do not, you can forget the contracts." Again his profit was not in cash but in the certainty of obtaining the contracts, a lesser consideration than the actual cash shared by employees of the company whose part in this was definitely more heinous than that of the Appellant. 4. Mr. Bleach referred us to sentences in certain cases involving commercial frauds of types which, though not on all fours, bear some similarity to the present offence but we do not think that we are greatly assisted by those cases. 5. Mr. Longley, for the Crown, referred us to the case of the Attorney General v. YU Kin-keung(1), where a similar term, that is a 2 year immediate custodial sentence, was imposed. We think, however, that that case, on its facts, is very different from this. The Appellant there stood to gain, had his scheme succeeded in total, some $800,000 and the insurance against workmen's compensation of a non-existent amah with some fifteen different insurance companies was on a vastly different scale from the fraud the subject of conspiracy in the present case. 6. We think there is justification in Mr. Bleach's suggestion that had the learned judge given greater heed to the relative parts played in this conspiracy, he would not have imposed the sentences which he did. We allow the appeal, set aside the sentences and substitute sentences of the same length in respect of each of the four offences, the sentences to be suspended for 2 years. 7. The effect of the order for suspension has been explained to the Appellant in Court. Representation: John Bleach (Haldane & Co.) for Appellant. P.K.M. Longley for Crown/Respondent. (1) Application for Review No. 9 of 1975 |