R. v. Li, 2020 BCPC 225

Citation: R. v. Li 2020 BCPC 225 Date: 20201007 File No: 456430-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. FANGJIE LI ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: B. Petherbridge Counsel for the Defendant: G. Ng Place of Hearing: Vancouver , B.C. Date of Hearing: October 7, 2020 Date of Judgment: October 7, 2020 [ 1 ] THE COURT : These are oral reasons. I reserve the opportunity to review these reasons in the event a transcript is ordered for grammatical purposes and punctuation purposes, but not for substantive purposes.

Introduction [ 2 ] The accused, Fangjie Li, has pled guilty to an offence contrary to s. 380(1) (

a) of the Criminal Code in that between the 1st of September, 2016, through to the 30th day of August, 2017, at Burnaby, British Columbia, did by deceit, falsehood or other fraudulent means defraud Motion LP doing business as Motion Specialities. Issue [ 3 ] The sole issue to be determined is what is a fit, just, and proper sentence having regard to the principles of sentence contained in s. 718 through s. 718.2 of the Criminal Code . Additionally, s. 718.2(e), and s. 380.1(

a) of the Criminal Code apply in relation to deemed aggravating factors. Background [ 4 ] I have had the benefit of admissions pursuant to s. 655 of the Criminal Code being filed. I will deal briefly with some of the admissions, but not in detail. [ 5 ] From December 2012, Mr. Li was employed as an accounts receivable clerk by the Burnaby branch of Motion LP doing business as Motion Specialities, a national chain of outlets for products and services to aid mobility. In 2014, the branch's accountant left the company and Mr.

Li took over as the accountant responsible for financial reporting to head office and bookkeeping. [ 6 ] As a result of anomalies with respect to two credit cards, an investigation was commenced, and on September 15, 2017, the regional manager and branch general manager sought the assistance of Mr. Li as the branch accountant in investigating these anomalies. [ 7 ] At their meeting, Mr. Li confessed that he had committed the fraud. At that stage, the company was aware of $30,000 worth of fraudulent refunds through that credit card or the two credit cards and their transactions. Mr.

Li told them he believed the sum to be closer to $60,000 or $70,000. [ 8 ] A further forensic investigation was commenced and it was determined that the total quantum defrauded from Motion Specialities was $102,658.68. [ 9 ] The accused was interviewed by the RCMP on June 9, 2018, and he made a second confession. Between March 4 and August 25, 2020, Mr. Li has made three transfers of $34,264.56 for a total of $102,658.68. That amounts to full restitution for the amounts he defrauded. Position of the parties [ 10 ] The Crown seeks imprisonment for six months.

A conditional sentence order is not available. [ 11 ] The Crown identified several mitigating factors, including the accused was cooperative and he confessed. That said, he was in a position of trust and therefore, by operation of s. 718.2(a)(iii), that it is a deemed aggravating factor. [ 12 ] The fraud took place over approximately 17 months, and while it was not complex, it went on for some time. I note that s. 380.1(

a) of the Code applies in this case. [ 13 ] The Crown notes that this was not an impulsive action, but a persistent fraud that went over some period of time, and the accused knew or ought to have known that it was going to be inevitable that he would be caught. [ 14 ] The Crown detailed the mitigating circumstances. Firstly and most importantly, the confession and cooperation of the accused and his guilty plea.

There is no criminal record, though the Crown takes the position and, provided authority, that it is to be given less weight because the accused appeared to be inescapably caught, and it was inevitable that he would be in a position of pleading guilty and that a trial did not seem to be realistic in this particular case. Having said that, he is obviously presumed innocent, but he has accepted responsibility by entering a guilty plea. [ 15 ] Over the break, I have reviewed the Crown authorities.

The language used by the Court of Appeal is this, and they are synonymous, that either generally or usually a real prison sentence is imposed in breaches of trust. Authority for that can be found in R. v. Reid , 2004 YKCA 4 , and R. v. Laskowski, 2015 BCCA 248 at paragraph 29 . [ 16 ] The Crown also took the court through ranges of sentence. I have considered those ranges. Each case of course, as both counsel appreciate, will turn on their particular facts and circumstances. The more aggravating the facts, the more likely a significant prison sentence will be imposed.

The less aggravating or less egregious, that there would be a reduction in the sentence, but generally or usually it is a jail sentence. [ 17 ] So, for example, in R. v. Rauch , [2017] B.C.J. No. 1452 , a decision of my sister Judge Burdett, there was a significant fraud of over $100,000. The aggravating factors are quite alarming in that particular case, as noted at paragraph 41, which in part read, in relation to the accused: She personated Ms. Smith. She forged the initials of a bank manager. She purchased a date stamp to further perpetuate the fraud. She concocted false receipts.

She called unwitting third parties, had them send cheques to her and then took the money for herself. . . . she . . . charged personal expenses to the company. . . . [ 18 ] Judge Burdett writes: I have no doubt there were many other times during which she had the opportunity to reflect upon her behaviour and stop her criminal activity.

[ 19 ] Judge Burdett goes on to say: The significant impact on the victim. Ms. Smith and her family will never recover. . . from the offences. Ms. Smith has been emotionally damaged by the personal betrayal of Ms. Rauch. Her health has suffered. The employees of the companies had their employee benefits plan cancelled. They were told they were at risk of being laid off which must have been an anxious time for all involved. Ms.

Rauch used the money to pay for expensive vacations, clothes, and other extravagances. [ 20 ] In other words, a lavish lifestyle, and "She has not paid any restitution." A sentence of one year was imposed by Judge Burdett. [ 21 ] This is a significant fraud, but not in the range of three to five years which, in my view, in serious frauds is the range, and it would only be in exceptional circumstances that one would drop below that range. [ 22 ] I note both parties have made reference to Voong .

It is my opinion, before returning to the Crown position, I think Voong should be used sparingly with respect to exceptional circumstances, because Voong was applied in a drug trafficking context. That does not depart from the importance of Voong with respect to exceptional circumstances, but it must be, in my view, applied with some caution. [ 23 ] The Crown is seeking, by way of ancillary relief, DNA, secondary, pursuant to s. 487.051 of the Criminal Code . [ 24 ] The Crown made reference to some COVID cases.

As discussed with counsel in the morning, COVID protocols are evolving and Corrections Canada and Corrections British Columbia are doing the best they can to cope with this evolution. [ 25 ] The defence takes the position that a suspended sentence with three years of probation is appropriate. [ 26 ] Ms. Ng cites seven reasons why a suspended sentence should be imposed: 1) first, the guilty plea; 2) the passage of time; 3) the significant remorse; 4) her client has made full restitution; 5) his reformation and rehabilitation; 6) principles of restraint. [ 27 ] What was the seventh, Ms. Ng? [ 28 ] MS.

NG: Oh, the ability for the suspended sentence to have a deterrent effect based on the case law. [ 29 ] THE COURT: Right, right. Thank you. [ 30 ] Ms. Ng took me to various authorities to assist in relation to crafting of a fit, just, and appropriate sentence. Analysis and disposition [ 31 ] It was identified by the Crown, and not disputed by the defence, the most important principle of sentence is contained in s. 718.1, being a proportionate sentence having regard to the circumstances of the offence and the circumstances of the offender. That is why guidelines are guidelines. They do not straitjacket a court.

Rather, they provide to the court a range of sentence that may be appropriate to the offender, having regard to his or her offending behaviour. [ 32 ] In Voong , there is comment with respect to the importance of a probation order. Paragraph 39, in reference to Shoker : [39] A suspended sentence has been found to have a deterrent effect in some cases. Because a breach of the probation order can result in a revocation and sentencing on the original offence, it has been referred to as the “ Sword of Damocles ” hanging over the offender’s head. For example, in R. v. Saunders , [1993] B.C.J.

No. 2887 (C.A.) at para. 11 , Southin J.A. [as she then was] . . . [ 33 ] The accused is 37 years old. He is a Canadian citizen. Came from China. His wife has returned to China. His marriage relationship has dissolved. His parents, who are 65 and 67, are over here from China and are assisting him. He has two young children. [ 34 ] At the time he was employed at Motion LP, he was a certified professional accountant. He has given up that status.

That status is important because, as noted, with respect to their code of conduct, under "Professional Behaviour": Chartered Professional Accountants conduct themselves at all times in a manner which will maintain the good reputation of the profession and serve the public interest. [ 35 ] This he did not do. He compromised his position as an accountant which disturbed the company and of course compromised the public interest. [ 36 ] In the victim impact statement, it is noted, in part, that Mobility provides assistance to members of the public who have physical limitations.

I have taken that into account this fraud shook-up staff and management.

[ 37 ] Importantly, where the offence has a significant impact on the victims, given their personal circumstances, their age, health, and financial situation, identified in s. 380.1(1)(c.1), those factors call out for a more significant sentence than where it is a corporate entity.

That does not minimize the offending behaviour, but it does demonstrate there is some difference where people have been personally harmed, for example as in the Rauch case earlier. [ 38 ] To the credit of the accused, even facing these charges and ultimate sentence, he took counselling from a clinical counsellor which I have reviewed on the break, Stephen Barker. There were a total of 13 counselling sessions that range between November 7, 2018, and September 8, 2020. Mr. Barker does not identify a clinical diagnostic mental health issue, but describes Mr.

Li as being a person who was subject to a great deal of stress and had feelings of hopelessness about his future. Mr. Barker recommends ongoing counselling will assist the rehabilitation and reintegration of Mr. Li. [ 39 ] Mr. Li, as well, has volunteered 180 hours to the thrift store, as the thrift store coordinator for Richmond Family Place. It is clear he is highly regarded by the people that work at Richmond Family Place, as noted by the letter of reference of Sarah Hii.

He has received an outstanding volunteer service award as well. [ 40 ] The accused, as well, finds comfort from his church known as the Tapestry Church, where the pastor, in part, says [as read in]: For all your time, effort, hard work, and prayers, please accept the thanks and appreciation of this church, its leaders, staff, and me. You have truly been a blessing to Tap Hospitality and to the Tapestry community . . . -- in relation to the work he has done at that church. [ 41 ] He has also volunteered for 29 hours of work at the Sharing Farm in Richmond.

It is described in a letter of reference on his behalf that it is a community farm that grows food for donations to the Richmond Food Bank and local community meal programs. [ 42 ] He has made full restitution. [ 43 ] This is a difficult sentencing matter, and I must say that the position taken by Ms. Petherbridge is frankly quite appropriate but for two special circumstances, and I wish to emphasize special circumstances, not exceptional. The accused confessed on September 15, 2017, and again on June 9, 2018. The Information was not laid until the 9th of September, 2019.

We are now into October of 2020, over three years have gone by. That is unfortunate. I am not casting blame anywhere, but sometimes long becomes too long and this has become too long. [ 44 ] The other special circumstance is this; as a result of COVID-19, judges are no longer able to impose an intermittent sentence. An intermittent sentence is an important part of the sentencing process. It has been described in R. v. Peebles , 2010 MBCA 47 , at paragraph 39 as follows: . . .

Intermittent sentences strike a legislative balance between the denunciatory and deterrent functions of “real jail time” and the rehabilitative functions of preserving the offender's employment, family relationships and responsibilities, and obligations to the community. Reference is made to R. v. Middleton , 2009 SCC 21 at paragraphs 45 to 47 . [ 45 ] I cannot impose an intermittent sentence. It has to be a straight-time jail sentence.

I would have imposed an intermittent sentence due to the need to address general deterrence and denunciation. [ 46 ] It is for those two special circumstances that, in my opinion, distinguishes this case from what would be a usual or general sentence of imprisonment. I expect the circumstances here are going to be rare in other cases. [ 47 ] Would you stand, please. [ 48 ] There will be a suspension of sentence for a period of three years. I am going to go through each condition. I need you to acknowledge each condition. And I have indicated outside of this ruling to Mr.

Registrar, I am going to use my own conditions along with the picklist conditions. [ 49 ] You must keep the peace and be of good behaviour. Do you understand that condition? [ 50 ] THE ACCUSED: Yes. [ 51 ] THE COURT: You must appear before the court when required to do so by the court. Do you understand that condition? [ 52 ] THE ACCUSED: Yes. [ 53 ] THE COURT: You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change in employment or occupation. Do you understand that condition?

That is Condition 2001. [ 54 ] You shall report in person on or before 3:00 p.m. on October 8, 2020, to a probation officer at 275 East Cordova Street in the City of Vancouver, Province of British Columbia, thereafter as, when, and where directed, which may include reporting by telephone for the purpose of facilitating the completed community work service hours and counselling.

Do you understand that condition? [ 55 ] THE ACCUSED: Yes, Your Honour. [ 56 ] THE COURT: You shall provide your address to, and reside where directed by your probation officer and not change your residential address without the prior written permission of your probation officer. Do you understand that condition?

[ 57 ] THE ACCUSED: Yes, Your Honour. [ 58 ] THE COURT: For the first 45 days of this sentence, you shall be in your residence or on the lot in which it is situated, except for a genuine medical emergency pertaining to yourself, to your parents, or to your children; or except while travelling directly to, being at, and returning directly from lawful employment as approved by your probation officer; or except for attending at your place of worship, or except as otherwise permitted in writing by your probation officer, which permission you shall carry on your person and present same upon demand of any peace officer.

Do you understand that? [ 59 ] THE ACCUSED: Yes, Your Honour. [Indiscernible] my kids to school. [ 60 ] THE COURT: You drive them to school? [ 61 ] THE ACCUSED: Yeah. [ 62 ] THE COURT: Or except for travelling directly to and returning directly from taking your children to and from school; or except for five hours on each Saturday from 11 in the morning until four in the afternoon for your personal health and welfare, including being with your children or parents. I usually tighten that up a bit but I am going to give him five hours. [ 63 ] MS.

NG: Thank you, Your Honour. [ 64 ] THE COURT: For the next 45 days following that curfew, you shall be in your residence or on the lot in which it is situated between the hours of 6:00 p.m. of one day, and I will make it 6:00 a.m. of the following day, seven days per week, except for all of the exceptions that I have indicated, except leave the children out. He is not driving -- you do not drive the children to school at night or anything, do you? [ 65 ] THE ACCUSED: Not at night. [ 66 ] THE COURT: No.

So leave the children out, but the other exceptions apply. [ 67 ] If required to do so by a peace officer, you shall attend at the door of your residence to confirm curfew compliance. Do you understand that? [ 68 ] THE ACCUSED: Yes, Your Honour. [ 69 ] THE COURT: You will consent to taking counselling, if it is deemed necessary. [ 70 ] Having consented, at the direction of your probation officer, you shall take such counselling as may be directed. Do you understand that condition? Indicating yes each and every time.

He has got a soft voice. [ 71 ] THE COURT: Within the first 12 months of this order, at the direction of your probation officer, you shall participate in and successfully complete 50 hours of community work service to the satisfaction of your probation officer.

Do you understand that condition? [ 72 ] THE ACCUSED: Yes, Your Honour. [ 73 ] To the picklist, 2621: Before seeking, obtaining, or continuing any employment, or becoming a volunteer in any capacity that involves having authority over the real property, money, or valuable security of another person or corporation, you must provide the employer or the organization with a copy of this order. Do you understand that condition? [ 74 ] Nodding yes. That is a yes? [ 75 ] THE ACCUSED: Yes. [ 76 ] THE COURT: Thank you. I am mindful, sir, that a suspended sentence can have certain denunciatory aspects to it.

It is designed, as well, to rehabilitate you. That is a primary function of a probation order. But this is also one that is going to assist you pursuant to s. 732.1(3) (

h) of the Criminal Code , that it will provide you with reasonable conditions that protect society and facilitate your reintegration into society, so I am applying that

section of the Criminal Code to justify the length and the punitive aspects of this particular order. [ 77 ] Three years have gone by. Do you think Motion cares about a letter of apology? He has made restitution. He is writing to a company. [ 78 ] MS. PETHERBRIDGE: I don't think there's a great deal of concern, Your Honour. [ 79 ] THE COURT: I do not think so either.

The other thing I have to caution you on, so it is crystal clear to you, this is not a conditional sentence order, but if you breach this order, I have a feeling that the Crown would probably want to have the suspended sentence set aside and have me sentence you. [ 80 ] Do you understand all of the terms and conditions of the probation order? [ 81 ] THE ACCUSED: Yes. [ 82 ] THE COURT: You understand the gravity of the probation order and the need to comply, correct? [ 83 ] I am satisfied he has acknowledged all of the terms and conditions of the probation order when dispensing with his signature in

the registry. It can be sent to your office, Ms. Ng, and you can make sure, of course, that he will get that probation order. A copy of the probation order to go as well to the Crown, please. Once I retire, you can provide your -- any other conditions before I depart? [ 84 ] MS. PETHERBRIDGE: No, Your Honour. [ 85 ] THE COURT: No. Thanks. Provide your email addresses and we will go from there. (REASONS CONCLUDED)