Hu Jun Yun v The State [2005] FJHC 93; HAA0024J.2005S (26 April 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA0024 OF 2005

BETWEEN:

HU JUN YUN
APPELLANT

AND:

THE STATE
RESPONDENT

Appellant in Person
Mr. D. Goundar for the State

JUDGMENT

This appeal was lodged more than two years out of time. However, because the Appellant explained the delay satisfactorily, and because there appeared to be some merit in his appeal against sentence, I granted leave to appeal out of time. The appeal was heard on the 22nd of April 2005.

The Appellant proceeded on an appeal against sentence alone saying that his total sentence of five years imprisonment was harsh, excessive and wrong in principle. On the 3rd of September 2002, 44 counts of fraud were read to the Appellant. There were eleven counts of being in possession of forged document, eleven counts of forgery, eleven counts of uttering forged documents and eleven counts of obtaining money on forged documents. He pleaded guilty on all counts, except for those alleging forgery. The prosecution withdrew the forgery counts and proceeded to the sentencing hearing.

The facts were that the appellant who holds a Chinese passport arrived in Fiji in 1999, to study English. He did not persevere with his studies and was declared an illegal immigrant. He then presented counterfeit traveller’s cheques to the Westpac Bank, the ANZ Bank and the Colonial Bank obtaining a total of $70,532.43 over three days in January 2000. When the Banks tried to clear the cheques with Citicorp, they were told that all the cheques were counterfeit. The Appellant had, in the meantime left for Tuvalu on a false Singapore passport. He was convicted of similar offences in Tuvalu and was sentenced to two years imprisonment. On the 3rd of December 2001, he was deported from Tuvalu to Fiji. Under caution he admitted cashing the counterfeit cheques. The $70,532.43 was never recovered.

The Appellant agreed with these facts. He was 21 years old and a first offender. He submitted a written plea of mitigation. In it, he said that all the money obtained had been obtained for one Jason Zhong. He said that this person had paid him $6,000.00 and kept the balance. He threatened to harm the Appellant and his grandmother, if he did not obey his instructions, both in Fiji and in Tuvalu. He said that as a result of these offences, his reputation was destroyed.

The learned Magistrate, in his sentencing remarks commenced eight years imprisonment. He reduced this term by three years for the guilty plea and other mitigation and arrived at five years imprisonment on each count to be served concurrently.

The Appellant now has only a few months of that sentence to serve. In his submissions, on appeal, he submitted that the five-year term was far in excess of the tariff for fraud offences. He repeated the mitigation presented in the lower court and asked to have his sentence reduced to allow for his immediate release.

The State counsel agreed that the five-year term was harsh and excessive. He considered that the eight years starting point was wrong in principle because the tariff for fraud cases ranged from eighteen months to four years imprisonment, with four years imprisonment reserved for the worst type of offending. He agreed that although this was a systematic fraud the Appellant was a young first offender who had co-operated with police investigations.

State counsel quite rightly conceded this appeal. A starting point should in most cases, be picked from within the tariff. In this case, the fraud was systematic and large-scale. A starting point of three years imprisonment would have been correct in principle. The aggravating factors were that none of the stolen money had been recovered, the Appellant committed the offences whilst he was illegally in the country, the amount defrauded was large, and the fraud was on banks which rely on trust and goodwill to operate. I would increase the term to five years imprisonment.

The mitigating factors were his youth, his good character and the fact that he did not benefit from all the sum defrauded. The prosecution did not dispute that the Appellant had received only $6,000.00 of the money, or that he was instructed by another person, possibly with the use of threats to commit the offences. I would reduce the sentence to three years imprisonment.

The appropriate sentence in this case is three years imprisonment on each count to run concurrently with each other. The five-year term imposed is therefore wrong in principle. The three-year term is to run from the 6th of September 2002. On his release, his current position of illegal immigrant would appear to be unchanged.

This appeal succeeds. The five years the Appellant is currently serving is quashed and substituted with a total of three years imprisonment.

[ Nazhat Shameem ]
JUDGE

At Suva
26th April 2005