HKSAR v. Lui Cho Hung

CACC000216/2000

CACC 216/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 216 OF 2000

(ON APPEAL FROM DCCC 12 OF 2000)

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Coram: Hon Stuart-Moore Ag CJHC, Wong JA & Hartmann J

Date of Hearing: 31 October 2000

Date of Judgment: 31 October 2000

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. On 15 May 2000, the Applicant was sentenced in the District Court by Deputy Judge Geiser to a total of six years' imprisonment against which he now seeks leave to appeal.

2. The judge set out with commendable brevity and clarity the broad basis of the case so far as it was material to the sentencing of the Applicant. The Applicant had pleaded guilty to six charges. Two related to offences of using a copy of a false instrument, contrary to section 74 of the Crimes Ordinance, Cap. 200 (charges 2 and 7), one offence was in respect of using a false instrument, contrary to section 73 of the Crimes Ordinance (charge 10), and three related to offences of theft, contrary to section 9 of the Theft Ordinance, Cap. 210 (charges 3, 8 and 11). The charges amounted to three pairs of offences, each theft being directly related to a 'false instrument' offence.

3. All of the offences took place between August 1996 and November 1997. The Applicant, who was then a partner in a firm of solicitors known as Messrs Boris Lui & Company, presented false documents purporting to be "Sale and Purchase Agreements", and he made misrepresentations on the basis of those documents, to the Guangdong Finance Company Limited. This resulted in that company approving three loans which were then paid into the Applicant's bank account. The amounts of the loans were $6 million, $4.67 million and $6 million respectively. The monies represented by these loans were then used by the Applicant for his own purposes.

4. As to the background of the case, the judge had this to say:

"In a nutshell, what the (Applicant) did was to use his position as a solicitor, to obtain this money in the pretence that it was for the purchase of three separate properties, and that he was acting in the purchase of those properties on behalf of the three prospective purchasers. It is an admitted fact that the total loss to the Guangdong Finance Company as a result of the defendant's dishonest activities is $16,628,872.

It goes without saying that these offences are grave indeed, and amount to a gross breach of public trust on the part of the (Applicant).

The (Applicant) is a solicitor and an officer of the court, and as such only the highest standards of integrity are acceptable. Members of the public look to the legal profession to protect them and (to) uphold the rule of law. By committing these offences the (Applicant) has betrayed that trust and brought disgrace to himself, his family and his profession."

5. The judge went on to say that defence counsel had realistically indicated "that the (Applicant) expected a lengthy term of imprisonment as a result of his disgraceful behaviour".

6. With this background, the judge dealt with all material aspects of the mitigation, and he referred to the recent guidelines to be found in R v Trevor Clark [1998] 2 Cr. App. R. 137, which was cited with approval in Secretary for Justice v Wong Kay-din (Application for Review No. 7 of 1998). In the latter case, Mayo JA (as he then was) observed, when giving the judgment in Wong Kay-din:

"In simple terms it could be said that (Trevor) Clark is an attempt to take cognisance of inflationary values since Barrick which was heard in 1985 so as to ensure that the monetary factors which are weighed in determining an appropriate sentence are kept in line."

7. The court went on in that case to say that no rational justification could be discerned to depart from the sentences suggested in Trevor Clark.

8. The judge, in passing sentence, applied the guidelines laid down in Trevor Clark taking a ten-year sentence as being merited for a theft of what amounted in the present case in terms of pounds sterling, to more than ￡1 million. The judge then took a nine-year starting point for charges 2, 7 and 10. He discounted this by one-third to take account of the Applicant's pleas of guilty, finally arriving to a sentence of six years' imprisonment on those charges. On charges 3, 8 and 11, which were the three related theft offences, he took as his starting point a sentence of seven and a half years, and again discounted this by one-third, making five years, to take into account the guilty pleas. The judge then took into account the totality of the sentences and found that he could properly order that each of the sentences should run concurrently, making a total of six years' imprisonment.

9. In submitting on behalf of the Applicant that the sentence of six years' imprisonment was manifestly excessive and wrong in principle, Mr Hoosen argued that the judge was wrong to have imposed sentences which were not in accordance with existing sentencing guidelines at the time of the commission of the offences. Mr Hoosen is right in one sense, but for the sizeable losses involved in the present case, there were, prior to Trevor Clark and Wong Kay-din (above), no guidelines in place at all. Such guidelines as there were, are to be found in R v Barrick [1985] 81 Cr. App. R. 78 which made provision for the sentencing of dishonest offenders who had acted in breach of trust. However, how far this assists the Applicant is altogether another matter. The highest band considered by the English Court of Appeal in Barrick was a figure of "over ￡100,000" for which a term of between three and a half and four a half years was considered appropriate after trial.

10. Whilst it is true that the sums involved in the present case exceeded ￡100,000 in Hong Kong dollar equivalent terms, here the amounts came to over ten times that figure. The Applicant had committed offences in relation to three quite separate mortgage loans. There was no requirement for the sentencing judge to have made all the sentences to run concurrently. Perhaps for reasons of simplicity and in order to show that totality had been taken into account, the judge may have felt that, by taking global sentences, this was the convenient and sensible way to set out what he had done. The judge would have been equally justified in sentencing the Applicant to consecutive terms of four years' imprisonment in respect of each of the pairs of charges and, with totality in mind, to have taken an overall starting point of nine years before making a reduction to six years to take into account the pleas of guilty. Whichever route was taken by the judge, we do not think that a starting point of nine years' imprisonment for offences of this gravity could be said to have breached the guidelines in Barrick.

11. However, Mr Hoosen went on to submit that the starting points taken by the judge, of nine years' imprisonment for the 'false instrument' charges and seven and a half years for each of the thefts, were manifestly excessive bearing in mind all the circumstances. We can see that this argument might be considered to have some substance to it if the offences were taken individually but again, as we have said, in the end this cannot take the Applicant any further forward. The judge had taken an overall or global view of the case when he could have made consecutive sentences in respect of the three separate pairs of offences.

12. The question for the determination of this court is whether ultimately the judge imposed a proper sentence. We have been left in no doubt that six years was an appropriate sentence.

13. There are, however, two further matters raised by Mr Hoosen which have required our consideration. He submitted that even if six years' imprisonment was not manifestly excessive, the sentencing judge should have given the Applicant's good character and reputation some additional credit, bringing the overall sentence down. As to this, breach of trust cases usually involve persons of previous good character, and, in Barrick (above), the court summarised the situation in a way which it may be helpful to set out. The Lord Chief Justice said (at page 81 in the judgment):

"The type of case with which we are concerned is where a person in a position of trust, for example, an accountant, solicitor, bank employee or postman, has used that privileged and trusted position to defraud his partners or clients or employers or the general public of sizable sums of money. He will usually, as in this case, be a person of hitherto impeccable character. It is practically certain, again as in this case, that he will never offend again and in the nature of things, he will never again in his life be able to secure similar employment with all that that means in the shape of disgrace for himself and hardship for himself and also his family."

14. In the present case, the judge made specific reference to the Applicant's background in passing sentence. Indeed, he was shown a number of references by people of high standing in the community to indicate that the Applicant had done a great deal of good work in his life. We have also been shown a number of those references in court today. However, the aggravating feature of this case, quite apart from the large sums of money involved, was that the Applicant used his position and his own high standing in the community as a reputable solicitor to commit these very offences. People are entitled to rely, and expect to be able to rely, upon what a solicitor has said and done as being trustworthy. The Applicant cannot at the same time seek to receive much credit for his good character when it was the very fact of his good character and standing which enabled him to commit these offences, in breach of the trust placed in him, in the first place.

15. Secondly, Mr Hoosen submitted that the judge erred in "failing to give the standard discount for the pleas of guilty from the seven-year jurisdictional limit of the District Court or, alternatively, he failed to give a 'meaningful discount' from the jurisdictional limit of seven years". In argument, he cited R v Ho Sik-yin (1991) 2 HKC 212 which, in the light of more recent authority, we have not found to be of any real assistance. In that case, the court had said (at page 213):

"In the District Court, when the starting point for sentence is seven years' imprisonment, a discount for a plea of guilty must be made from the jurisdictional limit of seven years, not from the starting point which the judge considers would have been appropriate had the case been heard in the High Court."

16. This decision was further amplified in The Attorney-General v Shek Wai-ip (1995) HKC 368, where at 371 Power VP observed:

"It is true, as this court has held in R v Ho Sik-yin (1991) 2 HKC 212, that a discount for plea must be made from the seven years but that is not to say that the seven years becomes the appropriate starting point. A judge in the District Court should make his determination as to the correct starting point without any reference to the maximum sentence allowed...."

17. Power VP went on to say that if the starting point is in excess of the seven years jurisdictional limit, then the judge will, of course, have to observe that he is bound by section 82 of the District Court Ordinance, Cap. 336 and cannot impose a sentence of more than seven years. The court concluded by saying that any deduction for plea would have to be taken from the jurisdictional limit of seven years.

18. Later, this whole topic was examined in some detail by the Court of Appeal in HKSAR v Li Yan (1998) 4 HKC 12 where Mortimer VP stated at 14C:

"Previous decisions of this Court

The approach to sentencing in these circumstances in the District Court has been considered previously in R v Mo Kwong Sang [1981] HKLR 610; R v Ho Sik Yin [1991] 2 HKC 212; R v Kwok Chi Kwan & Anor [1990] 1 HKLR 293; and HKSAR v To Yuk Sum [1997] 4 HKC 207. The principles which are to be elicited from these cases and the jurisdictional limit laid down in s. 82 of the District Court Ordinance (Cap. 336) are as follows:

(1) On any one occasion the District Court may not impose a greater sentence than seven years' imprisonment.

(2) Such a sentence may be consecutive to a sentence passed previously which is being served by the accused.

(3) In order to assess the correct sentence, it is permissible for the judge to adopt as a starting point, a total sentence of more than seven years if the offence or offences warrant such a sentence, but he may not impose a sentence of more than seven years.

(4) If the sentences are imposed after plea, the starting point may be more than seven years, but if the sentence after discount is seven years or more, the full seven years should not be imposed as this deprives the accused of any benefit for his plea of guilty.

(5) Therefore, in cases which merit a sentence of seven years or more after discount for plea, a further discount should be given. In R v Kwok Chi Kwan (above), a sentence of 6 1/2 years was imposed.

But R v Kwok Chi Kwan was decided before the now standard one-third discount for plea and sentencing policy must now be looked at in the light of that approach."

19. The judge a little later continued (at page 15A):

"The cases cited above demonstrate - and it is self-evident - that justice requires a further meaningful discount should be given from the maximum of seven years after plea in those cases which would attract seven years or more as the proper sentence which the court ought to impose. This is to give the accused some benefit for his plea of guilty.

But, neither policy nor justice require that a one-third discount for a plea should be given from the maximum of seven years regardless of the proper starting point. In cases where the appropriate sentence to be imposed after discount is seven years or more, a meaningful discount from seven years should be given in order to give some benefit for the plea. The same applies if the appropriate sentence is so near seven years that the discount is not meaningful. As to what is meaningful in the particular circumstances, this must be left to the sentencer, but rarely would a reduction of less than one year be so considered." (Emphasis added)

20. In the case presently before us, the sentence imposed on the Applicant was less than seven years, but having regard to the fact that this was a plea of guilty, albeit a plea which had by no means been tendered at the first opportunity, the question we have had to ask is whether the discount of one year from seven years is a "meaningful discount". We have no doubt that it is.

21. Having regard to the fact that we consider the overall sentence imposed on the Applicant to have been appropriate, albeit the judge had taken a starting point which could be described as being on the high side, we do not propose to disturb any of the sentences which were imposed.

22. Accordingly, the application is dismissed.

Representation:

Mr P.S. Chapman, SADPP, of the Department of Justice, for the Respondent.

Mr A.A. Hoosen, instructed by the Legal Aid Department, for the Applicant.