HKSAR v. Tse Kai-kui, Dennis

CACC000222/2003

CACC 222/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 222 OF 2003

(ON APPEAL FROM DCCC 559 OF 2002)

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Coram: Hon Stuart-Moore VP & Gall J

Date of Hearing: 28 August 2003

Date of Judgment: 28 August 2003

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.On 19 August 2002, the Applicant, aged 38, pleaded guilty in the District Court before Judge M. Poon to four charges of conspiracy to obtain a pecuniary advantage by deception and to fifteen charges of using a copy of a false instrument. He was sentenced to thirty-two months' imprisonment against which he now seeks leave to appeal out of time.

2.The facts of the case were summarised by the judge in these terms:

"The defendant was an adjudged bankrupt at the material time. He and a friend designed a scheme to obtain personal instalment loans from the Hongkong Bank. Employment letters and banking records were forged on behalf of a total of 19 persons. Knowing that the bank manager did not require the originals of these documents for examination, copies of such were submitted by this defendant and sometimes with his friend. As a result, the bank granted a total of about HK$2 million personal instalment loans to those persons. Those persons defaulted in repayment and the bank suffered a loss of $1.9 million. The defendant and his friend obtained 20 to 25 per cent of the loan amount as reward for each successful application." (Appeal bundle p. 31)

3.No criticism has been made of either the four-year starting point taken by the judge in respect of these offences or the one-third discount the judge gave the Applicant for his pleas of guilty.

4.The only question to be determined in these proceedings is the extent of the further discount which it is accepted must now be given to the Applicant in recognition of the considerable assistance he has given to the ICAC. This began at the time of his arrest when he not only admitted his own guilt but also implicated all the other offenders who were involved with him. By the time the Applicant pleaded guilty in the District Court, he had made at least fourteen written statements implicating his accomplices. These included the other prime culprit, apart from himself, in these frauds. However, the Applicant's assistance required him to be ready and willing to give evidence if these statements were to be of any practical value.

5.As the judge quite rightly indicated when passing sentence, a discount above the normal one-third for his pleas of guilty should only, in the circumstances of this case, be forthcoming when his "bare promise" to give evidence for the prosecution against the other offenders he had named was converted into action. The Applicant's statement of intention has now been carried out by him.

6.We are informed that the Applicant's assistance, which has included the provision of about twenty-one non-prejudicial statements altogether, has led to pleas of guilty being entered by twelve others directly connected to these frauds. In a further four cases, the Applicant was required to testify. In eleven cases, all told, prison sentences ranging from twenty-seven to six months were imposed. In two of those cases, the prison sentences were suspended. In two other cases, community service orders were imposed. There is one case which remains outstanding as to sentence only. These cases were dealt with on various dates between 21 January 2003 and 25 August 2003 at no less than four different Magistrates' Courts and, in one case, in the District Court.

7.The assistance given by the Applicant since sentence was imposed on him has been wholly exceptional and calls for an unusually high discount to reward it. In this context, we observe that Ng Kwok-kwan, who hatched up this fraudulent scheme with the Applicant, received a sentence in the District Court of twenty-seven months' imprisonment on his eventual pleas of guilty. This reflected a five-month additional discount on his pleas of guilty for the assistance he had provided in regard to two of the co-defendants, already named by the Applicant, both of whom in due course pleaded guilty.

8.We propose to grant leave and, treating the hearing as the appeal, we quash the sentence of thirty-two months and substitute this with a sentence of twenty months' imprisonment on each charge to be served concurrently.

Representation:

Mr Eddie Sean, SADPP (Ag), of the Department of Justice, for the Respondent.

Mr John Haynes, instructed by Director of Legal Aid, for the Applicant.