HKSAR v. Siu Ka Yan Waman

CACC000232/2002

CACC 232/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 232 OF 2002

(ON APPEAL FROM DCCC NO. 1134 OF 2001)

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Coram: Hon Stock JA and Gall J in Court

Date of Hearing: 29 January 2003

Date of Judgment: 29 January 2003

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1This applicant pleaded guilty before HH Judge Wright in the District Court and, on 29 April 2002, was sentenced to a total of three years and four months' imprisonment, in respect of six charges of conspiracy to defraud. This is his application for leave to appeal against sentence. He was the second defendant at trial. The first defendant, a man called Lee, who is not before us, also pleaded guilty and was given the same sentence. The applicant now complains that he did not receive from the judge recognition, in the sentence imposed, of assistance which he had provided to the police or for the fact that he made an early indication that he would give evidence against Lee which, he says, persuaded Lee to plead guilty.

2The six charges to which the applicant and Lee pleaded guilty were charges 1, 4, 8, 19, 26 and 40 on the charge sheet. We shall refer to them as charges 1 to 6 respectively. The first alleged that between March 1997 and August 2001 they conspired to defraud whoever might be induced to purchase goods from the applicant, trading in that charge as Great Host Development Enterprises Co., by falsely representing to prospective purchasers of goods that the business represented by that company was a genuine and honest business. The second to sixth charges inclusive were to the same effect, subject only to a different starting date and a different bogus vehicle for the fraud. There were six such bogus businesses established, and the fraud lasted from March 1997 to the time of the applicant's arrest on 13 August 2001. The customers targeted were all overseas enterprises who parted with over US$1 million as a result of the fraud practised upon them.

3In sentencing the applicant and Lee, the learned judge noted the extent of the scheme, lasting as it did for over four years, with the conspirators moving, as it were, from company to company to keep the scheme alive; and he noted the significant sums involved, and the fact that they had targeted overseas customers. Lee had a clear record, but the judge commented, rightly, that with continuous theft of this kind, that hardly counted. Conversely, the applicant had a previous conviction for theft, but that was a while ago, and had resulted only in a fine. He adopted in relation to each charge a starting point of three and a half years' imprisonment resulting, after the normal one-third deduction for a guilty plea, in a term of two years and four months' imprisonment. He took the view that the appropriate totality was one of three years and four months; and to give effect to that totality, he ordered the sentences to run concurrently, save that twelve months of the sentences on the second to sixth charges inclusive was to run consecutively to the sentence on the first; thereby making a total of three years and four months' imprisonment. This was the sentence which he imposed on both the applicant and Lee.

4There were two particular matters advanced in mitigation on behalf of the applicant which, it is said today on behalf of the applicant by Mr Ramanathan, were not given sufficient recognition by the judge. The first was this, that as a result of information which the applicant provided to the police upon his arrest, the police found at Lee's home a number of discs and sim cards, and that this was material help which deserved recognition. Secondly, the applicant intimated at an early stage that he would plead guilty and, at a point when Lee was apparently intending to plead not guilty, the applicant said he would give evidence for the prosecution and he made statements to that end; and it was submitted on his behalf that this had a material bearing upon Lee's last minute decision to plead guilty. This, it is argued, deserves recognition, but none was given.

5In relation to these matters the judge had this to say:

" It has been suggested that the 2nd Accused should receive an additional discount because of his early indication that he was prepared to give evidence against the lst Accused and his earlier co-operation. The earlier co-operation, as it is revealed in the summary of facts, seems to me to be nothing more than a man who is being honest with the investigating authorities about his involvement and that of others. It is correct that he indicated on his first appearance in the District Court that he was going to plead guilty and that is a factor that of course would have been known to the 1st Accused throughout. It was, however, only at the pre-trial review that it was made known to the court that he was prepared to give evidence against his co-accused. I am told by the 1st Accused's counsel that even prior to that date, albeit shortly, the 1st Accused had indicated to the prosecution his willingness to enter pleas of guilty.

Whilst it is possible, obviously, that the confirmation by the 2nd Accused of his willingness to give evidence may have strengthened the 1st Accused's decision to give evidence, I cannot be satisfied on what I have heard that the decision played any material role in securing the 1st Accused's pleas. The fact is of course he did not have to give evidence. In my judgment the 2nd Accused is not entitled to any additional discount." (Tr pp 36-37)

6We can dispense quite shortly with the tip-off point, as it has been called, about the items found in Lee's house. In the event, this was of little significance. Here was a suspect telling the police a story about the conspiracy in which of course he had, once he decided to admit his own involvement, to reveal the existence of the other culprit; and by the time the police were told of these discs in Lee's home, they had already discovered at Lee's place computers and discs which contained all the correspondence between the applicant's companies and the victims abroad, save in respect of one victim who was the subject of the fifteenth charge. This is not the sort of wholly ancillary assistance that carries a discount further than that engaged by the applicant's admission of the offences, and his plea of guilty.

7The second aspect, however, is a little more difficult. The principles upon which a court acts upon evidence given by an applicant against a co-defendant, and upon which it will not act upon a mere promise, and variations on that theme, are well thumbed; but it has been recognised that where a decision to give evidence the intention of which is not in doubt, and where it is shown in addition that that intention and offer had a material bearing on the decision of the co-defendant to plead guilty, the offeror's assistance should receive some recognition. See R v Yan Im-Kun Cr App 680 of 1996.

8It was said in mitigation before the trial judge by counsel for Lee that the applicant's announced intention to give evidence had nothing to do with his decision to plead guilty, and that when Lee made his decision to plead guilty he was not aware of the applicant's decision to give evidence. The reason Lee was so keen to put this suggestion across emerges in the mitigation soon after the point was made, namely, that the only reason Lee had decided to plead guilty was out of pure remorse. Given the lateness of the plea by Lee, and the history of the proceedings, that mitigation and that suggested reason for the plea deserved a healthy degree of scepticism.

9We have been provided by counsel for the respondent with a helpful chronology of developments. This applicant intimated as early as August 2001 that he would plead guilty, although he was then facing but one charge. He told a court that in late December; at which stage Lee told that court that he would plead not guilty. The court set 8 February 2002 for the pre-trial review. Between late December 2001 and early February 2002, the applicant provided no fewer than five statements to the police to be used as statements for the purpose of Lee's prosecution. In early February Lee's advisers informed the prosecution that Lee would plead guilty if the prosecution did not seek an enhancement of sentence under the provisions of the Organized and Serious Crimes Ordinance, Cap. 455. On 7 February, the prosecution served upon Lee's advisers the witness statements made by the applicant and, at the pre-trial review, the prosecutor informed the court that the prosecution intended to call the applicant to give evidence at Lee's trial. At the same pre-trial review those acting for Lee told the court that at trial the prosecution evidence would be agreed, save for the applicant's evidence. The trial was then set down for 26 April 2002. In early April, Lee's lawyers again broached the subject of the prosecution dropping an application for enhancement of sentence, and it seems that the prosecution agreed to that; and thereafter Lee indicated, on 22 April 2002, that is three days before trial, that he would plead guilty.

10We do not think that the judge had this detailed history before him. It seems to us that whilst Lee's decision to plead guilty in the end hinged on whether the prosecution was to pursue an application for enhancement of sentence in the event of conviction, and although it was recognised that the case against Lee was very strong even without the applicant's evidence, nonetheless it is difficult against the history which we have recited to say that the applicant's conduct did not play a part in Lee's decision. On the facts we have outlined, we think that it must have done, and one is left with a feeling that there is a disparity in approach to the two applicants which is not given expression in the sentences of the court below. We think that had the judge had the benefit of the information which we now have, he would have taken a slightly more sympathetic view on this aspect of the applicant's mitigation, and a more sceptical view of that advanced on behalf of Lee.

11We grant leave to the applicant to appeal against the sentences imposed; we treat the hearing as the appeal; and we set aside the sentences imposed in the court below; and substitute the following: for each offence there will be a term of two years' imprisonment to run concurrently one to the other, save for the sixth (which was charge 40) where one year will run concurrently to the sentences on the other charges and one year consecutively; a total of three years' imprisonment.

Representation:

Mr Kumar Ramanathan assigned by the Legal Aid Department for the Applicant

Mr Hayson Tse of the Department of Justice for the Respondent