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

Counsel:

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. Kwok’s 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. Kwok’s 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 SCC 32, [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."