R. v. Hoang, 2008 ONCA 283

CITATION: R. v. Hoang, 2008 ONCA 283

DATE: DRAFT: 20080415

DOCKET: C46113

COURT OF APPEAL FOR ONTARIO

FELDMAN, SIMMONS and ROULEAU JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

VAN PHAT HOANG

Appellant

David Russell for the appellant

Peter DeFreitas for the respondent

Heard and endorsed: April 10, 2008

On appeal from sentence imposed by Justice Roderick D. Clarke of the Ontario Court of Justice dated June 30, 2006.

APPEAL BOOK ENDORSEMENT

[1] The only issue on this appeal is whether the trial judge made an error of law by failing to give the appellant time to pay the fine which was calculated and imposed based on the amount of the proceeds of the crime. In our view the trial judge made no error.

[2] The evidence was that the appellant applied for and received $122,000 of the amount originally seized back from Canadian Customs. His lawyer advised the judge that he had no knowledge of what happened to the funds. In those circumstances the trial judge concluded that the appellant either had the money on hand or had access to it, and therefore did not need time to pay. Without any other evidence, the trial judge made no error in so concluding.

[3] The trial judge also added that he was denying time to pay because of the appellant’s devious conduct in obtaining the seized money back from Canada Customs. While this added reason is an improper basis for denying time to pay, having regard to the evidentiary record before the judge, the result would inevitably have been the same.

[4] In the result, leave to appeal sentence is granted but the appeal is dismissed.