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Wong Kam Chung v Republic [2001] KICA 17; Criminal Appeal 01 of 2001 (5 April 2001)

IN THE KIRIBATI COURT OF APPEAL
CRIMINAL JURISDICTION
HELD AT BETIO, KIRIBATI

Criminal Appeal No. 1 of 2001

BETWEEN:

WONG KAM CHUNG
Appellant

AND:

THE REPUBLIC
Respondent

Before: Casey JA
Bisson JA
Tompkins JA

Counsel: Mr N Allen for the appellant
Mr D James for the respondent

Date of Hearing: 28 March 2001
Date of Judgment: 5 April 2001

JUDGMENT OF THE COURT

The appellant pleaded guilty to the following counts in an indictment in the High Court, with particulars of the offences, as follows,

Count 3

Statement of Offence

ATTEMPTED FALSE PRETENCES contrary to section 371 and section 301(a) of the Penal Code Cap. 67

Particulars of Offence

Kam Chung Wong on the 27th October 2000 at the Bank of Kiribati in Bairiki, Tarawa, by false pretence, that is, by representing to the Bank of Kiribati officials that Citicorp travellers cheques of 29 USD $100 were genuine knowing such representation to be false, and with intent to defraud attempted to obtain from the Bank of Kiribati the equivalent amount in Australian dollars of such travellers cheques.

Count 4

Statement of Offence

POSSESSION OF FORGED DOCUMENTS contrary to section 339(1) of the Penal Code Cap. 67

Particulars of Offence

Kam Chung Wong on the 27th October 2000 had in his possession forged bank notes, namely Citicorp travellers cheques in the amount of USD2900 made up of 29 USD $100 Citicorp travellers cheques.

Count 6

Statement of Offence

PERSONATION contrary to section 360 of the Penal Code Cap. 67

Particulars of Offence

Kam Chung Wong on the 27th October 2000 at the Bank of Kiribati in Bairiki Tarawa, falsely represented himself to be Lee Seng Huat, a Singaporean citizen, with intent to defraud the Bank of Kiribati, attempted to cash 29 USD$100 Citicorp travellers cheques.

Count 7

Statement of Offence

PERSONATION contrary to section 360 of the Penal Code Cap. 67

Particulars of Offence

Kam Chung Wong on the 30th October 200, at the Bank of Kiribati in Betio, Tarawa, falsely represents himself to be Lee Seng Huat, a Singaporean citizen, with intent to defraud the Bank of Kiribati, attempted to cash 25 USD$20 Visa travellers cheques.

A nolle prosequi was presented on Counts 1, 2 and 5 so they have no relevance to this appeal.

This is an appeal against the following sentences as imposed by the Court,

For the most serious offence, possession of forged documents you are sentenced to 5 years' imprisonment. For each of the other 3 offences you are sentenced to 9 months' imprisonment, all sentences to be served concurrently and to run from 24th November since when you have been in custody.

The grounds for the appeal are that the sentences are manifestly excessive. The maximum sentence for the possession of forged documents is 14 years' imprisonment. The other three offences each have maximum penalties of 2 years' imprisonment.

Mr Allen, for the appellant, submitted that 5 years' imprisonment was manifestly excessive for the particular offence of possession of forged documents being travellers cheques for a total of US$2900 and also manifestly excessive after having regard to the totality of the criminal operation involving an amount of some AU$6500. The mitigating factors raised by Mr Allen were the appellant's plea of guilty and the fact that the appellant was a foreigner who had no family support while in prison in Kiribati.

Mr James, while accepting that the sentence of 5 years' imprisonment was a "significant" punishment, argued that it was not excessive when the need for deterrence was considered. This appellant was the end of a crime chain from Hong Kong, a sophisticated country, and the introduction of such a scam into this more simple community called for a quick signal that it was totally unacceptable with personal considerations of the appellant being secondary to deterrence. We agree with that in principle.

Mr Allen cited a number of cases from England where sentences ranged from 9 months for fraud of small amounts to 5 years where very large sums were involved. The circumstances in England are not relevant to the situation. For example the prevalence of such offending was relevant there. Here, we were told that this type of offending was uncommon, in fact there were no other cases for the purposes of comparison. The only Kiribati case cited to us by Mr Allen was Wendy Kaitara (HCCrimC 19/99) in which a bank teller embezzled $17,500 from her employer and was sentenced to 18 months' imprisonment. She had pleaded guilty and had strong grounds for mitigation. That is not helpful in the present situation of a foreign national coming to this country to introduce a scam by way of the fraudulent presentation of false travellers cheques, possession of forged travellers cheques and false pretences with intent to defraud.

By way of contrast is the case of Johnny Mosi Kum Kee (Crim App No. 1 of 1999 Judgment 29/11/99). In that case the appellant was convicted of massive fraud of the customs and bribery of a customs officer. Fines of $68,105 and $75,000 were imposed, in default cumulative sentences of 2 years' imprisonment plus 2 years of bribery were imposed.

In the case before this Court no fines have been imposed and the monies obtained by fraud and not recovered amounted to only US$3,100.

We agree with the Chief Justice when he said,

It was an elaborate scheme of dishonesty. I must regard what you did as most serious. Even though the prosecution has no record of any previous offences and you have pleaded guilty you must go to gaol.

The question is was a sentence of 5 years manifestly excessive. We have concluded that the onus on the appellant has been discharged. The Chief justice has not referred to any particular reduction in the sentence for the plea of guilty. The sentence of 5 years' imprisonment may well have been justified if there had been a plea of not guilty. In our view having regard to the saving in time and expense to the prosecution but still having regard to the need for a deterrent sentence and having regard to the amount involved, a sentence of 3 years' imprisonment would be appropriate.

Accordingly leave to appeal is granted. The sentence of 5 years' imprisonment on count 5 is quashed and in lieu a sentence on count 4 of 3 years is imposed, all other sentences to remain and be concurrent with the sentence on count 4.

Casey JA
Bisson JA
Tompkins JA