IN THE COURT OF APPEAL
Coram: The Hon. Bokhary, J.A., Wong and Stuart-Moore, J.J. in Court
Date of hearing: 26 October 1994
Date of delivery of judgment: 26 October 1994
J U D G M E N T
Wong. J. (giving the judgment of the Court):
1. The applicant, who was D1 in the court below, was charged with conspiracy to defraud together with four other persons. Three of themwho lent their credit cards to D1 and D2 pleaded guilty and received sentences ranging from six months to two years imprisonment.The applicant and D2 pleaded not guilty and were convicted after trial in the District Court before Deputy Judge Meredith. He sentencedeach of them to imprisonment for a term of three years. The applicant now seeks leave to appeal against both conviction and sentence.
2. The particulars of offence in the re-amended charge sheet read as follows :-
3. The scheme in this case involved the applicant together with others using credit cards of other people to make purchases of goods,mostly clothes and some laser discs, in Japan.
4. Between December 1990 and May 1991, the applicant travelled to Japan on six occasions and stayed there between four to six days eachtime. He was accompanied by D2 during the second to the fifth trips. There were a total of 534 transactions where credit cards wereused to buy goods to the value of over $1.2 million, which the issuing banks of the credit cards were obliged to pay and did pay.
5. Persons who lent their credit cards to D1 or D2 were each paid between $7,000 to $10,000 as rewards. They were told to lie and didlie to the bank when they were contacted by the bank about these transactions that they had not made nor authorised the transactions;that they had not been in Japan at the time of the transactions and that their credit cards had been in their possession all thetime.
6. The applicant raised a number of matters in his home-made grounds of appeal.
7. None of these matters caused us any concern. We are satisfied that each and every one of them had been carefully considered by thedeputy judge. There was ample evidence to support the conviction: both direct evidence from PW2, FONG Man-piu and circumstantialevidence of a most cogent nature which, if accepted by the deputy judge, would establish a case against the applicant beyond reasonabledoubt.
8. We see no merit in the application for leave to appeal against conviction and it is accordingly dismissed. We turn now to sentence.The complaint of the applicant is not so much that the sentence imposed on him is too severe but rather it is the disparity betweenhis sentence and the sentences imposed on those defendants who pleaded guilty.
9. The different role played by each defendant and the different sentence imposed on the defendants are helpfully set out in the Reasonsfor Sentence. At page 49 of the appeal bundle, the deputy judge said,
10. He continued in paragraph 9 at page 52:
11. The deputy judge also correctly concluded that the applicant was the mastermind of the scheme and the main culprit, having made allsix trips to Japan. This was a premeditated and deliberate fraud, committed over a period of six months. The amount involved waslarge totalling more than $1.2 million.
12. It should be noted that D2 was also sentenced to 3 years’ imprisonment.
13. In our judgment, the different sentences imposed on the applicant and the other defendants are plainly justified, having regard tothe role each of them played and the circumstances of each case. There is no merit in this complaint. The sentence of 3 years’ imprisonmentis neither wrong in principle nor manifestly excessive. The application for leave to appeal against sentence is also dismissed.
Mr. Kevin P. Zervos, S.C.C. for the Crown.
Applicant LEE Chi-chuen, Ricky, in person.