HKSAR v. Ng Kwok Kwan

CACC000267/2003

CACC 267/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 267 OF 2003

(ON APPEAL FROM DCCC 164/2003)

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Coram: Hon Stock JA and Hon Gall J in Court

Date of Hearing: 28 January 2004

Date of Judgment: 28 January 2004

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J U D G M E N T

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Stock JA (giving the judgment of the Court):

1.This applicant pleaded guilty before His Honour Judge Line in the District Court to twenty charges of conspiracy to defraud and was sentenced on 20 June 2003 to a total term of 27 months imprisonment. He now seeks leave to appeal against sentence on the narrow ground that he has since rendered material assistance to the authorities by giving evidence for the prosecution.

2.The facts of the case can be shortly stated. The applicant together with a man called Tse applied for and secured loans for himself by the use of fraudulent documents which falsely showed that he was employed by a certain company or companies when he was not. Through four loans obtained for himself the bank lost $136,000. The scheme of dishonesty was furthered in that he and Tse assisted others to do the same thing by forging letters and other documents and in relation to the assistance thus given to others he obtained a percentage of the loans advanced. There were sixteen such further charges to which he pleaded guilty and the loss to the bank occasioned by those loans amounted $1.372 million.

3.The judge took a starting point of four years imprisonment. The applicant's role was less than that of the accomplice but the applicant, unlike the accomplice, had a previous record of dishonesty. One third reduction from the starting point was given for the plea of guilty and a further five months for the fact that the applicant had given statements to the ICAC with a view to giving evidence for the prosecution in the case of the accomplice and others. The judge accepted that although the applicant was in the event not called upon to give evidence, the applicant's conduct was instrumental in those others pleading guilty. So he reduced the sentence by another five months making a total of 27 months imprisonment.

4.The sole ground of this appeal which has been presented in writing to us succinctly and realistically by Mr Ng is that since sentence the applicant has given evidence in the case of another of those involved in the fraud, although that person was acquitted. Nonetheless, the ICAC accepts that the testimony advanced was truthful, that the applicant did what he could to assist, and that the applicant thereby rendered further material assistance to the authorities.

5.We have concluded that some additional credit should be given, although it does not in the overall picture that emerges, and given the credit thus far given for similar assistance, warrant a very substantial further reduction. We shall grant leave and treating the hearing of the application as the appeal, allow the appeal, set aside the sentences of 27 months, and substitute a sentence of 24 months in respect of each charge to run concurrently one with the other.

Representation:

Ms Anthea Pang, SGC, of the Department of Justice, for the Respondent

Mr Alex C W Ng, assigned by the Legal Aid Department, for the Applicant