HKSAR v. Tam Lap Shek

CACC 199/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 199 OF 2012

(ON APPEAL FROM DCCC NO. 1212 OF 2008)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1.On 11 January 2016 the Chief Executive referred “the whole of the case” to this Court pursuant to section 83P of the Criminal Procedure Ordinance, Cap. 221.[1] He did so in response to a petition to the Chief Executive, dated 30 July 2015, in which the applicant sought reference of this case to this Court for reduction of sentence.

2.On 6 March 2012, the applicant was convicted after trial by Deputy District Judge Gary Lam, as he was then, of 6 charges of dealing in property, knowing or having reasonable grounds to believe that it was the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455.  On 18 May 2012, the applicant was sentenced to a total of 5 years’ imprisonment.

3.On 31 July 2013, this Court allowed the applicant’s application for leave to appeal against conviction and quashed his convictions on Charges 3, 4 and 5.  However, his appeal in respect of Charges 1, 2 and 6 was dismissed.  Similarly, his application for leave to appeal against sentence in respect of Charges 1, 2 and 6 was dismissed.

4.On 18 December 2013, the Appeal Committee of the Court of Final Appeal refused the applicant leave to appeal against conviction to the Court of Final Appeal in respect of Charges 1, 2 and 6.

Background 

5.The applicant was tried together with his co-habitee, the 2^nd defendant at trial.  The charges alleged that they dealt with property, namely money, by receiving it into, withdrawing or transferring it from various bank and securities accounts in Hong Kong in their respective names.

6.By Charge 1, the applicant was convicted of having dealt with $54,156,413 in an account with the Hang Seng Bank Limited in the period 1 July 2001 to 18 July 2007.  By Charge 2, he was convicted of having dealt with $2,580,000 in an account with the Industrial Commercial Bank of China (Asia) Limited in the period 8 January 2004 to 18 July 2007.  Finally, by Charge 6 he was convicted of having dealt with $4,670,050 in an account with Hang Tung Securities Limited in the period 13 February to 18 July 2007.

Reasons for sentence

7.In his reasons for sentence, the judge said that there was no evidence of the underlying criminal activity, nor was an international element present in the commission of the offence [2].  Having said that he had regard to the role of the applicant and the commission of the offences, he stipulated starting points for sentence of 5½ years’, 2½ years’, and 3½ years’ imprisonment for Charges 1, 2 and 6 respectively.  Stating that he had regard to the applicant’s ill-health, the judge afforded him a discount of sentence of 6 months’ imprisonment in respect of each of the three charges.  Accordingly, he imposed sentences of 5 years’, 2 years’ and 3 years’ imprisonment on the charges, ordering all of the sentences to be served concurrently.

Dismissal of the application for appeal against sentence

8.In dismissing the applicant’s application for leave to appeal against sentence, this Court said:[3]

“ Whilst we are satisfied that the scheme by which the 1^st applicant dealt with the property was not particularly devious or clever it was nevertheless simple and effective. For example, as noted earlier, the transactions in the Hang Seng Bank account, the subject of charge 1, involved the deposit and withdrawal in aggregate of large sums of money in cash, the receipt of casino cheques and the transfer to and from other accounts. Moreover, that activity was carried on for a period of no less than six years.”

9.Furthermore, we said:[4]

“ We are satisfied that the judge correctly identified the primary factors relevant to the determination of the appropriate sentences to be imposed, in particular the amount of money involved, the duration over which the offences were committed and the role of the applicant concerned. Similarly, he was entitled to have regard, as he stated he did, in favour of the applicants that there was no evidence of the underlying criminal activity and that there was no international element involved. However, we are satisfied that the resulting total sentence of 5 years’ imprisonment was markedly low for the 1^st applicant’s overall culpability.”

10.On the other hand, we noted that:[5]

“ Although the judge was aware of the ambit of the admissions/agreements made by the applicants in respect of the prosecution case (see paragraph 16 of the reasons for verdict) he did not advert to that fact in his reasons for sentence. There is no doubt that those admissions/agreements saved the time of the trial court. We are satisfied that the applicants were entitled to a small discount in sentence to reflect that laudable approach to the trial.

Nevertheless, we are satisfied that such small discount in sentence that ought to have been afforded the 1^st applicant for the manner in which the defence was conducted is to be regarded as subsumed by the over generous low totality of sentence imposed on him, so that it is not appropriate for this court to interfere with the individual sentences imposed upon the applicant.”

Submissions on behalf of the applicant

11.Mr Daniel Marash SC invited the Court to note that it was accepted by the respondent that, whilst serving his sentence of imprisonment, the applicant had provided assistance to the authorities which had led to the arrest and charging of a defendant who, subsequently had been convicted on his own plea in the Court of First Instance and sentenced to a substantial term of imprisonment.  In those circumstances, he invited this Court to afford the applicant a further discount in the sentence of imprisonment to which he is subject.

The respondent’s submissions

12.Whilst accepting that the applicant had provided the authorities with fruitful information, Mr Martin Hui SC submitted that in the special circumstances of this case no further discount ought to be afforded to the applicant.  Also, he invited the Court to note that in our judgment we said that the applicant was the undeserving beneficiary of a “markedly low” total sentence of 5 years’ imprisonment.

A consideration of the submissions

13.In a separate judgment we determined that, in the special circumstances of this case, the applicant was not entitled to any further discount of sentence for assistance given to the authorities.

Conclusion

14.Accordingly, the application is refused.

Costs

15.Although Mr Marash opposed Mr Hui’s application for an order in favour of the respondent for the costs of these proceedings, he conceded that this Court had power to make such an order, pursuant to section 13 of the Cost in Criminal Cases Ordinance, Cap. 492, in a case referred to the Court pursuant to section 83P of the Criminal Procedure Ordinance, Cap. 221.  Having determined that the application was without merit, we are satisfied that it was appropriate to make the order.  Accordingly, we order that the respondent is to have its cost of these proceedings, to be taxed if not agreed.

16.Finally, we order that the papers in these proceedings, including those the subject of our earlier judgment delivered today, are to be provided to the Director of Public Prosecutions for him to consider and to take such action, if any, as he deems appropriate.

Mr Martin Hui, SC, DDPP(Ag) and Mr Franco Kuan, SPP, of the Department of Justice, for the respondent

Mr Daniel Marash, SC and Mr Simon K.C. Ng, instructed by Lau, Chan & Ko, for the applicant

[1] (1) Where a person has been convicted on indictment or …the Chief Executive may, if he thinks fit, at any time either-

(a) refer the whole case to the Court of Appeal and the case shall then be treated for all purposes as an appeal to the Court of Appeal by that person;

[2] (DCCC 1212/2008; unreported, 16 May 2012) at paragraph 16.

[3] (CACC 199/2012; unreported, 31 July 2013) at paragraph 140.

[4] (CACC 199/2012; unreported, 31 July 2013) at paragraph 141.

[5] (CACC 199/2012; unreported, 31 July 2013) at paragraphs 142-3.