



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Chen, 2015 ONCA 144

DATE: 20150304

DOCKET: C58428

MacFarland, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Jing Ming Chen and Kien Sheng Kwok

Respondents

Kevin Wilson, for the appellant

Richard M. Goldman, for the respondent Jing Ming Chen
    and

Christopher Adrian Avery, for the respondent Kien Sheng
    Kwok

Heard and released orally:  February 24, 2015

On appeal from the sentence imposed on February 12, 2014
    by Justice Stephen Glithero of the Superior Court of Justice.

ENDORSEMENT

[1]

The trial judge indicated that the appropriate sentence in relation to
    Mr. Kwok was 39 months and we agree. He then considered the fact of
    Mr. Kwoks co-operation and said a credit of five to six months would be
    appropriate to reflect that.  We see no error.

[2]

The difficulty here is that while the trial judge discussed parity he
    did not fix any determinate amount to be credited to this appellant. By process
    of elimination in imposing a sentence of two years less one day, he had to have
    allowed approximately nine months in this regard.

[3]

In our view, because of Mr. Kwoks previous criminal antecedents for a
    similar offence, we are of the view that his situation differs from that of his
    three co-accused. In the circumstances, on the basis of
R. v. Fice
,
    [2005] 1 SCR 742  a conditional sentence was not available.

[4]

We would allow the appeal, set aside the conditional sentence of two years
    less one day, impose a sentence of 39 months less six months for co-operation
    with the authorities and a further 12 months to reflect the time served on the
    conditional sentence.  This leaves a further period of 21 months of
    incarceration to be served.


J. MacFarland J.A.

M.
    Tulloch J.A.


G.
    Pardu J.A.


