Tang Yu Chung and Others v. The Queen
|
CACC000992/1979
----------------- Coram: Zimmern & Garcia, JJ. & Mr. Commissioner Litton, Q.C. Date of Judgment: 28 December 1979 ----------------- JUDGMENT ----------------- Garcia, J.: 1. The appellants were convicted on their pleas of guilty to one charge of possession of forged documents contrary to section 76(3) of the Crimes Ordinance, Cap. 200, and to five charges of obtaining property by deception contrary to section 17(1) of the Theft Ordinance, Cap. 210. 2. Towards the end of March 1979 the appellants were concerned in the establishment of an organization known as the "Stanford Studies Consulting and Tutorial Services" and contrary to what its name implies, the organization did not provide any tutorial or consultancy services, and as may be gleaned from the advertisements inserted in several issues of the Wah Kiu Yat Po in April 1979 the appellants held themselves out as being specialists in examination questions set for the Hong Kong Certificate of Education Examination, and as being able to give out accurate information on such questions. As to how such claim as to specialisation and forcasting was to be achieved the appellants obtained copies of past examination papers set for that particular examination in 1973 and in 1975 in various subjects and they had photographic plates made of such papers with the year altered to 1979 so that the resulting documents gave the appearance that the appellants were in possession of genuine examination papers for the forthcoming examination to be held in April this year. The advertisements gave neither the address nor the telephone number of the organization, and candidates for the examination desirous of contacting the organization for its services had to do so by giving their names, addresses and telephone numbers in writing addressed to the box numbers provided for advertisers in the same newspaper. Several candidates in response to the said advertisements were met by the appellants either in the street or in restaurants and at such meetings were shown the forged documents and, once the candidates were convinced of the authenticity of the examination papers by the appellants, negotiations were entered into for the purchase, not of the forged documents themselves, but of copies of such documents either typed or photocopied without the date appearing thereon. The prices paid for these copies varied from $50 to $200 per paper, depending on the subject to be taken in the examination. After the purchase was made and the copy came into the hands of the candidates concerned, they realized that they had been deceived by the appellants, and it was not until 5th May this year, when an astute candidate realizing that the appellants were not offering bona fide information on how to pass the said examination, contacted the Independent Commission Against Corruption, and as a result of the investigations made by the officers of that organization the appellants were arrested and charged with a number of offences of which the ones which they pleaded guilty to, formed part. The total amount involved in the five charges of obtaining property by deception, to which the appellants pleaded guilty, comes to $1,860. 3. Following their convictions the appellants were each sentenced to a total of eighteen months' imprisonment in respect of all the said charges and they now appeal against such sentences on the ground that they are too severe. 4. All the appellants, with the exception of the second appellant, have clear records, and the second appellant's conviction which was for criminal damage in February 1979, had not been adverted to by the learned trial judge in his reasons for sentence. Before the said sentences were imposed on the appellants, the learned judge obtained at the behest of counsel appearing on their behalf probation reports and, it is clear, when passing sentence, he took their contents into account together with their pleas of guilty, their remorse, their present and future prospects of employment and that they all come from decent families. He also took into account, when imposing immediate custodial sentences, the gravity of the offences, and what we think weighed heavily on his mind were, firstly, the supposed reliance which the appellants placed on the fear of harm which would attend those candidates should there be a disclosure that they were party to such transactions, and secondly, such candidates were not only deceived but were either corrupted or tended to be corrupted by their actions and the possibility of the appellants' customers failing the examination if they accepted the papers as genuine. There was, of course, no indication in the record that these were the effects of the offences committed by the appellants. 5. To our minds, these offences would not have been successfully carried out without there being any demand for advance knowledge of questions likely to be set for the examination. At the very least, those candidates who responded to the appellants' offer were themselves not without blame and it is doubtful whether they would have done any better if they had not contacted the appellants in the first place. 6. The probation reports revealed in great detail the backgrounds of each of the appellants and aside from the present offences each of them was well behaved so far as their families were concerned, and they had all either been offered gainful employment or were gainfully employed. They are all gainfully employed now. Whilst we are in agreement with the learned judge that these offences were deliberately planned and, therefore, a serious view should be taken of them nevertheless, we think the recommendations made by the probation officers who prepared the reports that the appellants would benefit from some sort of supervision and that they stand a good chance of being rehabilitated, deserve much more consideration than they were given. Members of the appellants' families have expressed willingness to undertake more stringent supervision over them in the absence of an order placing them on probation, and without detracting from the seriousness of the offences, we think that in all the circumstances, and all of them being virtually first offenders of crimes in which no voilence was involved and only a very small section of the community had been affected thereby, the appellants should be given the chance to rehabilitate themselves. 7. The course we propose to take, therefore, is that the concurrent sentences of eighteen months' imprisonment imposed on all the appellants should be reduced to concurrent sentences of fifteen months each but these sentences would be suspended for a period of three years. To this extent the appeals are allowed. We are sure that the appellants will realize that they will now have an opportunity of redeeming themselves and one in which members of their immediate families can take an active part and we also hope that the appellants would not consider that we are dealing with them too leniently because suspended sentences can be very onerous as I will explain in due course. [Effect of suspended sentences explained to appellants who then signify that they understand]. 9. We have been informed this morning that the amount of $1,860 had been paid to your solicitors. We think that money ought to be paid back to the victims in the five charges of obtaining money by deception, and, accordingly, an order is made that this money be returned to them in the amounts set out in those charges. Representation: Patrick Yu, Alan Hoo (H.M. So & Co.) for Appellants S.C. Tisdall, Crown Counsel, for Crown |