HKSAR v. Yue Wai Man and Another

CACC000410/2001

CACC 410/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 410 OF 2001

(ON APPEAL FROM DCCC 1166 OF 2000)

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Coram: Hon Stuart-Moore Ag CJHC & Stock JA in Court

Date of Hearing: 15 August 2001

Date of Judgment: 15 August 2001

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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):

Introduction

1.These Applicants (D3 and D5 respectively) ultimately pleaded guilty to charges of conspiracy to defraud, contrary to Common Law, when they came before Judge Chua in the District Court. D3 pleaded guilty on 3 September 2001 to three charges and was sentenced on 19 September 2001 to a total of thirty months' imprisonment. D5 pleaded guilty to two charges on 11 October 2001 and was sentenced to concurrent terms of twenty-four months' imprisonment on 29 October 2001. On 5 February 2002, D3 was given leave by the single judge to appeal against sentence. D5 now seeks leave out of time to appeal against sentence.

2.The charge sheet originally named eight defendants, including D3 and D5. Essentially, all of the defendants, in different combinations, faced one or more charges of conspiracy to defraud members of the Hong Kong Police Force and insurance companies by a course of conduct involving the deliberate damaging of motor vehicles followed by the making of false reports to the police and false claims to insurance companies by making out that the damage had occurred genuinely in motor accidents, with a view to obtaining compensation on the false insurance claims made by them.

3.The trial commenced on 27 August 2001. On the following day, two defendants (D2 and D8) pleaded guilty. On 29 August 2001, the trial proceeded with voir dires concerning the admissibility of the alleged confessions of five of the defendants. D5 contested his statements to police but D3 did not.

4.On 3 September 2001, D3 pleaded guilty and D6 pleaded guilty on 4 September 2001. On 6 September 2001, the judge ruled that D5's confessions (amongst others) were admissible. On 10 September 2001, D5 and two others pleaded guilty to various charges. D5 at this stage indicated that he was prepared to assist the prosecution. On 11 September 2001, D7 pleaded guilty to one charge and offered to assist the prosecution. D3 and others were sentenced about ten days before D5 and D7 who were still in the process of providing statements to the ICAC.

5.The facts concerning the offences do not greatly matter for the purposes of these proceedings. They occurred, so far as D3 and D5 are concerned, between February 1997 and June 1998. D3 pleaded guilty to charges 3, 4 and 16, each of which involved invented motor accident claims to insurance companies following false reports being made to the police. The combined amount paid out on the bogus claims arising from these three purported accidents was $348,992.

6.D5 pleaded guilty to charges 5 and 8 which were committed in similar circumstances to D3's offences. Insurance companies paid $252,064 in compensation based on the false accident reports and claims made.

7.D1 was also heavily involved in this series of offences, over a longer period of time than D3 and D5, with a man named Ng Ting-fai (Ng). They were partners in a garage business known as 'Tune Up'. We shall need to say more about them, but it suffices for the present to say that D1 pleaded guilty on 10 September 2001 to charges 2, 6, 10, 15, 16 and 18.

Sentencing of D3

8.The judge described D1, aged about 40, who was sentenced on the same occasion as D3, as the "main instigator of these frauds". She then adopted a starting point in D1's case of three and a half years' imprisonment which, after giving him a 20% discount for his late pleas, she reduced to thirty-three and a half months on each charge, making one month on each of charges 6, 10, 15, 16 and 18 run consecutively to the sentence on charge 2. This left D1 with an overall sentence of thirty-eight and a half months. The false claims involved in his offences led to compensation amounting to $1,233,379 being paid by insurance companies.

9.The judge, in her Reasons for Sentence, explained that although D3, aged about 36, had not pleaded guilty at the outset, she would treat him as having done so because he had not contested the admissibility of his statements of confession. In passing sentence on D3, the judge said:

"D3 pleaded (guilty) to three charges, Charges 3, 4 and 16. Charges 1, 7, 12 and 19 are left on file. Although his counsel claims he was recruited by Ng Ting-fai, the facts to which he has agreed point the finger at D1. In Charge 3, he crashed the car belonging to Ng Kwok-wing. He drove the car into a railing. $63,000 was paid for the repairs. In Charge 4, D3 agreed to orchestrate a three car pile-up. One car was driven by D1. Insurance was again paid up as a result of this contrived collision. In Charge 16, D1, D2 and D3 were involved and two cars were deliberately damaged in the garage and false police reports were made by D2 and D3. D3 was clearly a willing participant and no doubt he received a share in the insurance proceeds.

I will use a starting point of 3 1 / 2 years in his case and he will get a third discount for his pleas, taking the sentence down to 28 months. He is sentenced to 28 months on Charges 3, 4 and 16, but the sentences for Charges 4 and 16 will run partially concurrent with the previous sentence and partially consecutive to it by one month, making a total of 30 months." (Appeal bundle pp.35-36)

D3's appeal

10.These remarks of the sentencing judge have led to D3's appeal being mounted on an argument that his sentence was manifestly excessive and, in addition, disproportionately lengthy in comparison to D1 and others who were sentenced for these offences by Judge Chua.

11.On the ground relating to the alleged disparity in D3's sentence, it was emphasised that D1 was a main instigator who had pleaded guilty to twice as many charges as D3 involving far greater financial losses. Mr Giles Surman, on D3's behalf, in his written argument also relied to an extent on the fact that D1 came before the court as a man with a minor previous criminal record whereas D3 was a man of previous good character. D1's record was trivial and it has not been a matter which has concerned us.

12.Mr Surman contended that the sentence of twelve months' imprisonment imposed on D2, who pleaded guilty to two offences, was well out of line with D3's sentence. This course was apparently intended by the judge to enable D2's immediate release as he had by then been detained in custody for about eight months. In his case, there may, as Mr Surman accepted, have been mitigation which justified such a lenient course being taken. The false claims for compensation amounted, in D2's case, to $444,217.

13.D5's two-year sentence for two charges involving just over $252,000 was not in itself criticised by his counsel, Mr Osmond Lam, whose application, to which we shall turn in due course, was based on wholly different grounds.

14.D4, aged 43, and D6, D7 and D8 whose ages are not revealed in the papers in front of us, were all given community service orders in varying numbers of hours. Each of these defendants pleaded guilty to one charge of conspiracy. Based on the false insurance claims arising from their offences, payments of $239,458, $190,970 and $168,000 were made in the cases of D7, D8 and D4 respectively. Even in D6's case, which involved the smallest of the false insurance claims for those given community service, the sum involved was $96,180.

15.In our view, these were serious frauds of a kind which are particularly difficult to detect. We have been unable to see the justification for any of the conspirators, with the possible exception of D7 who was in a different category because of his cooperation with the authorities, being given non-custodial sentences. However, this is not a factor which assisted Mr Surman and, rightly, he did not seek to utilise this to his advantage.

16.Mr Alex Lee, who appeared on the Respondent's behalf, reminded us that in R v Chan Wai-chiu and Ors [1994] 3 HKC 212, Power JA (as he then was), in the context of the approach to be taken to sentences where disparity is put forward as a ground of appeal, referred to passages taken from the decision in R v Stroud [1977] 65 Cr App R 150, and continued by saying at 215D:

"We are quite satisfied that Stroud only has application where an offender has suffered a more serious penalty than a more culpable co-defendant. In such circumstances, he is entitled to urge that he has a sense of grievance of which the court is required to take cognizance, i.e. a legitimate sense of grievance. That was not the circumstance here. The applicants received proper sentences. Indeed they were, if anything, lenient. We agree that the fourth defendant received a sentence much more lenient than he deserved but it was a sentence in excess of that imposed upon the applicants and they are not, we are satisfied, entitled to hold any legitimate sense of grievance. An offender who has received a proper sentence is entitled to consideration when he urges that a more culpable co-defendant, who was sentenced at the same time as he was, has received a lesser sentence than that which was imposed upon him. The sense of grievance arising from such a situation is a legitimate one to which a Court of Appeal can properly give heed. Where the co-defendant has received a sentence in excess of that imposed upon the complainant, however aggrieved he may feel, we are satisfied that it is not a sense of grievance which can properly be regarded as legitimate."

17.The position in Chan Wai-chiu, which concerned the participants in a conspiracy to rob, was not dissimilar to the situation which has arisen in the present case. No doubt D1 was fortunate to have received a sentence which, bearing in mind his reduced discount, was only marginally longer than D3's, but the fact remains that his sentence was, in the end, eight and a half months longer. D2's sentence was extremely lenient on the face of it, but special circumstances may have applied to him. In any event his role appears to have been a lesser one than D3's. The same applies also to D5 when his role is compared to D3's. The fact that the other co-defendants, whose roles were considerably smaller than D3's, were given non-custodial sentences, cannot as we have said assist D3 where his complaint on disparity of sentence must show that he has been sentenced to a longer period of incarceration than another, more culpable, offender.

18.Mr Surman also drew our attention to the later sentencing of Ng and three others who were ultimately brought to justice as the result of D5 and D7's statements to ICAC. These statements led to a variety of further pleas of guilty being entered on or about 19 June 2002 before Judge Whaley in the District Court in DCCC 134/2002. We were not greatly assisted by this aspect of Mr Surman's argument which failed to show any material disparity between the sentences imposed in that case when compared to the present case. Whilst it is shown that one of the defendants in that case received a lighter sentence by two months for a larger number of offences, we have to say, even assuming that it would be right to make such a comparison where different judges, albeit in connected cases, have on different occasions passed sentence, that the approach of the judge in that case was wrong in principle when he ordered wholly concurrent sentences for five separate and distinct offences. The resulting disparity is, in any event, minimal. Accordingly, we are not persuaded on this basis to allow the appeal.

19.We have concluded, therefore, that there was no disparity in D3's sentence. In D3's case, no ground has been advanced which would justify this court's interference with the sentence imposed on him.

20.D3's appeal is dismissed.

D5's application

21.Turning to the application made by D5, it was submitted by Mr Osmond Lam that D5 had provided valuable information to ICAC of other similar offences after he had been sentenced. In particular, this had, in part at least, been instrumental in Ng, one of the ringleaders of the syndicate, together with three others, being charged and convicted in DCCC 134/2002.

22.Furthermore, it is apparent that D5 was put under some considerable pressure by Ng not to give evidence against him. Whilst on bail, Ng and one other called Yan approached D5's wife and told her that unless D5 complied by "twisting" his evidence, the safety of their family was at risk. D5's wife reported what had happened to the police after D5 had told her to do so. This approach led to Ng and Yan being separately charged with doing an act tending and intended to pervert the course of justice in DCCC 470/2002.

23.The Respondent has acknowledged the assistance given by D5. Although D5 did not in the event need to give evidence, it is accepted that his statements contributed to Ng and three other co-conspirators pleading guilty when they appeared in the District Court in DCCC 134/2002.

24.In the circumstances, it is plain that D5 must now receive an additional discount to that which he was accorded when he pleaded guilty in the District Court. In saying this, we emphasise that Judge Chua was right not to have given a discount for D5's cooperation at the time she sentenced D5 when, at that time, he was only promising to give evidence against Ng and others who had not even, at that stage, been charged.

25.We consider that, bearing in mind all the circumstances, the properly calculated discount of 20% for D5's late plea should now be increased, to take into account all the assistance D5 has rendered since his sentence was imposed, to 40%. In saying this, we bear in mind that the outcome in DCCC 134/2002, following the defendants' timely pleas of guilty, was that Ng was sentenced to twenty-eight months' imprisonment, Yan and one other received sentences of twenty months and a fourth culprit received a community service order.

26.In DCCC 470/2002, Ng and Yan pleaded not guilty. D5's wife had to give evidence against them about the threatening conversations she had had with them when they sought to persuade D5, through her, not to give evidence against them. They were convicted, following a trial before Judge Day, and they each received a sentence of twenty-four months' imprisonment, with eighteen months to be served consecutively to the sentences they had received in DCCC 134/2002.

27.Taking, therefore, the perfectly proper starting point of thirty months' imprisonment adopted by the judge when sentencing D5, a 40% discount, to which at this stage we consider he is entitled for his late plea and cooperation, produces a reduction in his sentence to eighteen months' imprisonment.

28.We give leave out of time, and treating the hearing as the appeal, D5's sentence is reduced from twenty-four months to eighteen months' imprisonment.

Representation:

Mr Alex Lee, SADPP (Ag), of the Department of Justice, for the Respondent.

Mr Giles Surman, instructed by the Legal Aid Department, for D3/Applicant.

Mr Osmond Lam, instructed by Messrs Louis K.Y. Pau & Co. for D5/Applicant.