HKSAR v. Law King Yip and Others
Read the full judgment text of CACC 369/2003 on BabelCite. This Court of Appeal judgment was delivered on 1 December 2004 before Stock JA, Gall J, Lunn J.
Criminal law – conspiracy to defraud – common law – section 159C(6) Crimes Ordinance (Cap 200) – admission of co-conspirator statements – independent prima facie evidence – 'employee/victim' witnesses – 'shill' role – office ambience – sufficiency of evidence – starting point for sentence – discount for late guilty plea – delay in trial – length of trial – power of clemency under Article 48(12) of the Basic Law – Loco London Silver trading fraud at Talent Elite International Consultant Limited – employees lured into investing over $3 million in sham silver trading operation – whether co-conspirator statements admissible against 3rd and 4th applicants – whether PW9's evidence reliable despite inconsistencies – whether 6th applicant established as participant in conspiracy – whether 50-month starting point appropriate for 7th applicant as 'shill' – whether reduced discount appropriate for late guilty plea after 100+ days of trial – whether illness, delay, and length of trial warrant sentence reduction – applications for leave to appeal against conviction and sentence dismissed for all five applicants – sentencing: 1st applicant 3 years 8 months, 3rd applicant 3 years 8 months, 4th applicant 3 years 2 months, 6th applicant 4 years, 7th applicant 3 years 4 months – power to commute penalties reserved to the Chief Executive
Legal issues: Admissibility of co-conspirator statements against 3rd and 4th applicants · Reliability of PW9's evidence despite inconsistencies · Whether convictions rested solely on office ambience · Sufficiency of evidence regarding 6th applicant's participation · Starting point for 7th applicant's sentence · Reduced discount for late guilty plea · Relevance of illness, delay, and length of trial to sentence
Outcome: All applications for leave to appeal against conviction and sentence dismissed
Cited by 14 cases · Cites 4 cases
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CACC369/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO.369 OF 2003 (ON APPEAL FROM DCCC NO.837 OF 2002) ---------------------- BETWEEN
-------------------- Before : Hon Stock JA, Gall and Lunn JJ in Court Date of Hearing : 14 October 2004 Date of Judgment : 14 October 2004 Date of Handing Down Reasons for Judgment : 1 December 2004 -------------------------------------------------------------- REASONS FOR JUDGMENT -------------------------------------------------------------- Lunn J (giving the reasons for the judgment of the court) : Background 1.The applicants who seek leave to appeal against their convictions and their sentences were convicted after a very lengthy trial in the District Court by Deputy Judge McNair of a single charge of conspiracy to defraud, contrary to common law and punishable under section 159C(6) of the Crimes Ordinance, Cap.200. At the hearing of those applications on 14 October 2004, we dismissed the applications and indicated that we would hand down our reasons for so doing later. This we do now. 2.The ‘Particulars of Offence’ alleged that between May 1999 and July 2000 these applicants, the former 2nd, 5th and 8th defendants together with other persons unknown conspired to defraud such persons as might be induced to give any of them money to invest, by dishonestly :
3.The trial commenced on 10 February 2003. On 11 February the 8th defendant was convicted of the charge following her plea of guilty. Subsequently, she was called as a prosecution witness (PW31), her evidence beginning on 30 June and concluding on 9 July 2003. Shortly before the prosecution closed its case the former 2nd defendant pleaded guilty to the charge followed by the 1st, 5th and 7th defendants, who were convicted of the charge on 22 July 2003. The deputy judge delivered his ‘Reasons for Verdict’ on 29 July 2003. Convictions and sentence 4.The deputy judge convicted the 3rd, 4th and 6th applicants of the charge. The sentences imposed upon those applicants and the 1st and 7th applicants were :
Applications for leave to appeal against conviction 5.The 3rd, 4th and 6th applicants seek leave to appeal against their convictions and sentences. The 1st and 7th applicants seek leave to appeal against their sentences only. THE PROSECUTION CASE 6.The prosecution case concerned the business activities of a company, Talent Elite International Consultant Limited (“Talent”), which operated from premises at the 1st Floor, First Pacific Bank Centre, 56 Gloucester Road, Wanchai. The nub of the case was that its purported business of dealing in bullion, namely Loco London Silver trades， was entirely bogus and that these applicants, the former co-defendants and other persons unknown were parties to a conspiracy to defraud such persons as might be induced to give any of them money to invest in such trading by making the false representations set out in the “Particulars of Offence”, thereby inducing, causing or allowing such persons to make payments of money, not investing the money but appropriating it. The persons targeted to make such investments were persons who were lured into obtaining employment with the company with the offer of generous rates of salary, irrespective of their experience for the positions they were to occupy. Once in employment they were the target of other apparent employees of Talent who sought to persuade them to open accounts with Talent and to trade in bullion, after they had made payments of money into that account. To persuade them to do so they were regaled with accounts of profits made by their apparent fellow employees. There were no profits and there was no trading. If persuaded to invest, initially they were encouraged by assertions that their account had made a profit, but thereafter the account was said to have become exhausted of funds so that it was necessary for them to make further payments of money in order to try to recoup their losses. In truth, they were persuaded to throw good money after bad. 7.In support of their case the prosecution called as witnesses a number of employees of Talent who had been persuaded to invest in accounts with the company and who had been told that all their monies had been lost in trading. Those witnesses identified the roles played by the various applicants within the company, in particular in respect of their investment in bullion trading. Also, the prosecution called as a witness the former 8th defendant, after she had pleaded guilty to the charge of conspiracy to defraud. The only other witnesses of significance were two expert witnesses who testified as to the contrast between the operation of Talent and the operation of other Loco London Silver trading companies. THE DEFENCE CASE 8.None of the applicants exercised their right to give or call evidence in the defence case. In the conduct of their case counsel put in issue both the very existence of the alleged conspiracy and the part played by each respective applicant. In respect of the latter, the identification of the applicants by particular witnesses and the attribution by those witnesses to the particular applicant of specific conduct was put in issue. REASONS FOR VERDICT 9.In his consideration of the relevant law the deputy judge stated of his approach to the conspiracy charge :
No doubt, in so articulating the relevant law the deputy judge was mindful of the statement of law set out in the judgment of this court in R. v. Au Shui Yuen, Alick [1993] 2 HKC 219 at 226 F-G :
10.Having reviewed the evidence of the former 8th defendant (PW31), PW1 to PW6, PW8 and PW9, (all ‘employee/victims’) together with the evidence of the two expert witnesses Mr Chu and Mr Pike, the deputy judge found :
Of that issue the deputy judge went on to find :
11.Of the fundamental issues of which resolution was required the deputy judge said :
12.In resolving those questions the deputy judge went on to find :
The deputy judge went on to find that :
13.Of the issue of proof of the participation of the applicants in the conspiracy charged the deputy judge found :
Of that conduct the deputy judge found :
The deputy judge went on to find that in conducting themselves in that way the applicants were dishonest. 14.In the result, the deputy judge concluded :
Perfected grounds of appeal against conviction ― 3rd and 4th applicants 15.Mr Wong Po Wing, who appears on behalf of the 3rd and 4th applicants, advances similar grounds of appeal in respect of each of them. At the outset Mr Wong made it clear that he does not challenge the finding of the deputy judge that the company, Talent, was not involved in the genuine business of gold/silver trading using the victim’s funds; it was a fraud. The issue which is taken is the deputy judge’s findings that these appellants were party to the conspiracy found. Grounds 1 and 2 16.By Ground 1 complaint is made that the :
17.By Ground 2 it is complained that the :
18.The passage quoted from the deputy judge’s Reasons for Verdict in Ground 1 are not quoted in their entirety or context. The passage quoted was preceded by the words :
The deputy judge’s finding in this respect is set out later in his Reasons for Verdict :
19.Earlier in his Reasons for Verdict, as cited earlier, the deputy judge had identified the nature of the evidence of which he needed to be satisfied before he could rely upon the acts and statements of co-conspirators, namely that it required to be established on a prima facie basis by admissible independent evidence that the conspiracy existed and that the defendant was a party to that conspiracy. 20.Following his review of the evidence in his Reasons for Verdict the deputy judge returned to address those issues of law. He concluded :
21.It is clear from the deputy judge’s recitation of the evidence adduced in the prosecution case that there was an overwhelming volume of evidence to establish on a prima facie basis the existence of the conspiracy charged. Indeed, Mr Wong does not suggest otherwise. However, he does take issue on whether or not the evidence established, on a prima facie basis, the complicity of the 3rd and 4th applicants. Mr Wong concedes in his submissions that the evidence of two of the employee/victim witnesses, Lo Yuet Yiu ‘PW5’ and Lui Fung ‘PW8’, together with the evidence of Ma Ka Lai, the former 8th defendant, ‘PW31’, established the presence of both the 3rd and 4th applicants in the office premises of Talent and that they were employed there. However, it is clear that it is the evidence of another of the ‘employee/victim’ witnesses Hui Ka Fai ‘PW9’, which provided the court with the evidential basis upon which the deputy judge made his determination that there was “ample prima facie evidence.” He testified that he had been employed at Talent for about three weeks from the end of February into March 2000. Of PW9’s evidence the deputy judge noted that he had testified that after he had been employed the question of his opening an account with Talent was raised.
It is clear from the transcript of this evidence (p.1729) that the context in which the third applicant spoke was an attempt by the third applicant and others to persuade PW9 to pay monies to invest through Talent in prospect of profits and commissions from clients whose business he would then be given. PW9 did invest monies, all of which he lost. 22.The deputy judge noted that PW9 had testified of the 4th applicant in respect of the training that he received on engagement as an employee that :
In his testimony PW9 had testified that the 4th applicant had assisted him during his training.
In cross-examination the witness denied that he was mistaken in his identification of and the roles he attributed to the 3rd and 4th applicants. 23.Clearly, on the evidence which had been led at the trial the deputy judge was entitled to determine, as he did, that it was established on a prima facie basis that there was a conspiracy as charged and that the 3rd and 4th applicants were parties to it. The evidence of those ‘employee/victims’ and that of PW31, the former 8th defendant was independent evidence which provided that evidential basis. Accordingly, the deputy judge was entitled to have regard to the acts and statements of the co-conspirators made in furtherance of the conspiracy when considering the case against these applicants. In any event, Mr Wong conceded that he was unable to point to any such act or statement of co-conspirators of the 3rd and 4th applicants to which the judge had or may have had regard in considering their cases. Ground 4 24.By Ground 4 complaint is made on behalf of the 3rd and 4th applicants that the deputy judge :
It is submitted, in effect, that in light of those conflicts and inconsistencies the deputy judge erred in relying upon the testimony of PW9. 25.In his Reasons for Verdict the deputy judge noted that the events about which the witnesses testified had occurred some time earlier. Of that it is to be noted that, for example, PW9 testified in June 2003 about events that had occurred commencing in February 2000 and that his witness statements to the police had been made in November 2000 and June 2001. The deputy judge went on to state :
26.It is to be noted that the evidence of PW9 was given over the course of two days. His evidence-in-chief occupied one-day, after which he was cross-examined for the whole of the following day. It is clear from the transcript of that cross-examination that the witness was subjected to lengthy and detailed cross-examination in respect of his earlier out-of-court statements. Indeed, at one stage the deputy judge intervened in the cross-examination of counsel appearing for the 3rd and 4th applicants and said :
27.Amongst the minor matters laboured over in this cross-examination was the issue of the length of the period of training, the exact date on which the witness had first gone to Talent and the source of the monies paid by the witness to Talent. It was established that on 5 June 2001 the witness had identified both the 3rd and 4th applicants at identity parades, after which he had made a witness statement. In it he described the 3rd applicant as having told him that he had opened an account and the 4th applicant having taken part in teaching him calculations at the company. Of course, that was the nub of their evidence at trial. On the other hand, it was established that the witness had identified an actress at one identity parade and had failed to identify the 7th defendant at another parade, although he had identified her at court. Complaint was made that in a witness statement dated 22 June 2001, whilst giving a physical description of a ‘team’ member, the witness had not said in terms that this was a person he had picked out at the identity parade held on 5 June 2001. Furthermore, it was established that whilst the witness had testified that the 6th applicant had interviewed him for employment at Talent, consistent with his witness statement dated 12 June 2001, in a subsequent statement dated 22 June 2001 he had said that he was interviewed by a “Miss Lam”. The witness testified that he had ascribed that name to the 6th applicant only after being told by another participant at the identity parade that was the name of the person who had interviewed them. He remained adamant that the 6th applicant was the person who had interviewed him. 28.It is to be noted that at the conclusion of the cross-examination by counsel for the 3rd and 4th applicants, upon the application of the prosecution, the deputy judge ordered that the witness statements used to cross-examine PW9 be made exhibits. Of the use to which they were to be put he said :
29.We are satisfied that the deputy judge approached his analysis of the evidence and his determinations in respect of credibility of the witnesses in the correct way. None of the matters advanced by counsel for the 3rd and 4th applicants persuade us that the deputy judge was in error in accepting the evidence of PW9. There is no merit in the proposed Grounds 1, 2 and 4 sought to be advanced on behalf of the 3rd and 4th applicants. Ground 3 30.By this ground it is asserted that the deputy judge had convicted the applicants “on the basis that they (and the other defendants in the case) had provided an office ambience conducive to the continued ongoing participation of the prosecution witness” and that in allegedly doing so the deputy judge was in error. 31.Needless to say, the deputy judge did not convict either of the applicants on that basis alone. Having noted what he described as the “common thread winding through all the victims’ evidence” he observed that the multiple false representations made to them were made against a background of impressive offices and facilities. Of that he concluded :
That evidence, of course, included the role of the 4th applicant as an instructor in making calculations, and being available as a senior colleague to give advice; that of the 3rd and 4th applicants conversing in the offices apparently knowledgeably about silver trading and that of the 6th applicant, in having conducted an apparently genuine job interview of PW9, watching computer monitors and passing on information to others in Talent of prices. In the circumstances of this conspiracy to defraud we have no doubt that the deputy judge was entitled to find that the maintenance of the appearance of a genuine business created by the office ambience was an essential part of the conspiracy. This proposed ground of appeal fails. Ground 5 32.By this ground complaint is made that, although the evidence established the presence of the 3rd and 4th applicants in the offices of Talent, there was no evidence that the conduct of either of them induced or affected any of the victims to make an investment in Talent. 33.In respect of the 3rd applicant this contended ground of appeal is not factually accurate. As the deputy judge noted in his review of the evidence of the victims of the conspiracy the 3rd applicant had taken an active part in the successful efforts to persuade PW9 to open an account and invest monies with Talent. Of the testimony of PW9 of the role of the 3rd applicant the deputy judge said :
That conduct was consistent with what the deputy judge had found to be the “common thread winding through all the victims’ evidence”, namely that the new recruits were placed with small groups which contained at least one recruit who had purportedly opened a personal account and apparently made immediate profits, after which all were persuaded to open personal trading accounts by that recruit or other recruits and staff. 34.There was no evidence that the 4th applicant had been involved directly and personally in inducing or causing one of the victims to open an account and invest monies in Talent. His role was to appear to be experienced in the trading of silver and to teach the methods by which trading was to be conducted. Clearly, he added apparent verisimilitude to the facade of business ambience, which the deputy judge found to be an essential part of the conspiracy. Obviously, not all the conspirators played the same part in the conspiracy : some pretended to be fellow recruits, others managers and so on. The deputy judge found :
In the result, the deputy judge concluded :
35.We are satisfied that there is no merit in this proposed ground of appeal, which fails. Ground 6 36.By this omnibus ground of appeal it is contended that in all the circumstances the convictions of the 3rd and 4th applicants are unsafe and unsatisfactory. In his written and oral submissions Mr Wong has not identified any basis to support this ground of appeal other than by reference to the preceding grounds of appeal. In light of this court’s rejection of those proposed grounds of appeal this proposed ground fails as well. The 6th applicant’s perfected grounds of appeal against conviction Ground 1 37.By this ground it is contended that the deputy judge made a finding of fact, which is not supported by the evidence, namely :
Of that statement complaint is made that the identification of the 6th applicant was at a confrontation, not an identity parade, and that PW1 had not testified that the 6th applicant had interacted with him. 38.The respondent submits that, whilst the submission of the applicant is factually correct, in reality, there is no substance in the complaint. It is submitted that at most the deputy judge is guilty of the use of infelicitous language in trying to compress his findings in respect of a hearing which lasted five months into narrow compass. 39.The complaint in respect of the mistaken finding that identification of the 6th applicant was at an identity parade, rather than a confrontation, is of no relevance or substance whatsoever. The submission that somehow the deputy judge was in error to describe as interaction the contact between the 6th applicant and PW1 has no merit. In his more detailed review of the evidence of that witness, which review immediately precedes the impugned statement, the deputy judge makes no reference to dealings between the witness and the 6th applicant. In short, the witness identified the 6th applicant as being present at the premises of Talent, he thought in the role of a member of staff, but he testified of no personal dealings between them. There is no merit in this proposed ground of appeal. Ground 2 40.Complaint is made on behalf of the 6th applicant by this ground that the deputy judge erred “in totally disregarding the evidence of PW31 i.e. D8 (Madam Ma Ka Lai ) who turned into a prosecution witness and was found to be a strong and credible witness …” in respect of the role of the 6th applicant. 41.Nowhere in his Reasons for Verdict does the deputy judge make such a statement. Indeed, immediately after he stated of her that he remained alert to the possibility she may have been testifying in a manner that served some private agenda he went on to state :
42.In truth, the thrust of the argument submitted under this ground is that in light of the testimony of PW31 in respect of the 6th applicant, given that he found her a strong and credible witness, he ought to have acquitted the 6th applicant. In support of that submission, Mr Luk invites the court to note that the witness, who worked at the premises of Talent from June 1999 to July 2002, did not name the 6th applicant as one of the managers of Talent she listed in her testimony, nor did she describe her as being known to her as a tout or shill. Further, whilst the witness testified of the presence of the 6th applicant at the premises of Talent looking, from time to time, at computer monitors she did not ascribe any specific role to the 6th applicant. Also, it is submitted that the context in which that is to be viewed is the testimony of the witness that she knew the name of the 6th applicant and that the deputy judge was in error to state that she did not know her name. In short, the rhetorical question posed is: if, as she testified, PW31 was a co-conspirator in the conspiracy charge why did she not identify the 6th applicant as one of her co-conspirators? 43.It is clear that in the nature of the conspiracy as it operated not all the co-conspirators did or needed to know of the identities, activities or roles of their co-conspirators. That was the nature of this conspiracy. In respect of the issue of the witness’ knowledge of the name of the 6th applicant the witness had testified at the time of her dock identification of the 6th applicant that she knew her then as Chow Wai Kuen, that she could not recall by what name she went at the time of the conspiracy. The respondent submits that it is hardly surprising, given that the witness and the 6th applicant had been co-accused in prospect of trial for a lengthy period, that the witness was able to name the 6th applicant. 44.We are satisfied that the deputy judge correctly stated the necessary approach to the evidence of PW31 and, given that the evidence was little more than neutral to the 6th applicant — it not precluding a role as a co-conspirator for the 6th applicant — we are satisfied that there is no merit in this ground of appeal. Ground 3 45.Complaint is made by this ground that the deputy judge erred in attaching any or alternatively undue weight to the evidence of PW9 of his identification of the 6th applicant as the person at Talent who interviewed him for employment, in light of the conflicts between his testimony and his out of court witness statements and having regard to the evidence of other prosecution witnesses in respect of the 6th applicant. 46.The propriety of the deputy judge accepting the evidence of PW9 in respect of the 3rd and 4th applicants’ has been considered earlier in this judgment. Much of the consideration we gave there to the deputy judge’s approach to the evidence is apposite in respect of this ground of appeal for the 6th applicant. 47.In his evidence-in-chief PW9, who had identified the 6th applicant at an identification parade on 12 June 2001, was permitted to identify her in the dock at the trial. Of the 6th applicant, he said that he had seen her but that he did not remember her name. He said that about one week after becoming an employee of Talent at the end of February 2000, he had seen the 6th applicant at the premises of Talent watching the computer monitors for prices and using the telephone. During his training period he had seen her talking to other members of his group, including the 3rd, 4thand 7th applicants. He heard her relating information about prices from the computer monitors to the 7th applicant. The 6th applicant was on the premises up and until the time he left Talent, three weeks after becoming employed. However, when cross-examined by counsel for the 6th applicant on a witness statement he had made on 12 June 2001, after he had identified the 6th applicant, he went on to testify that the 6th applicant was the person who had interviewed him for employment at Talent in February 2000. Of the interview he testified that the 6th applicant had inquired of what work he had done previously and told him that the company had read : “my information and thought that I was suitable for the job that the company advertised”. It was his testimony that he had worked as a platform attendant for the M.T.R.. Having explained that the business of Talent was the provision of services to clients in trading in heavy metals she explained that after a training course he would be able to earn money by commission in addition to a basic salary. 48.The evidence which has been identified in Mr Luk’s written submission as being relevant to consideration by the deputy judge in determining the credibility and reliability of the witness was all before the deputy judge at trial. The repeated cross-examination in respect of contended inconsistencies in testimony, in contrast to prior out of court statements, eventually moved the deputy judge to say to counsel for the 6th applicant :
49.As we indicated earlier we are satisfied that the deputy judge approached his analysis of the evidence and his determinations in respect of credibility of the witnesses in the correct way. None of the matters advanced by counsel for the 6th applicant persuades us that the deputy judge was in error in accepting the evidence of PW9 in respect of the 6th applicant’s role at Talent. 50.This proposed ground of appeal fails. Ground 4 51.By this ground of appeal it is complained that the deputy judge erred in drawing the inference that the 6th applicant was a party to the conspiracy and guilty. Mr Luk submits that the evidence, notwithstanding that it established that the 6th applicant was an employee of Talent who had been seen watching the computer monitors in those premises, was insufficient for the deputy judge to find the 6th applicant guilty. 52.Mr Shiu, on behalf of the respondent, submitted in written submissions that this court should note that no evidence was given by or on behalf of any of the applicants or any defendant at the trial. Citing the judgment of Lord Hoffmann in the decision of the Court of Final Appeal in Li Defan and Another and HKSAR, [2002] 5 HKCFAR 320, Mr Shiu submits that in certain circumstances a jury or deputy judge alone could, but need not, consider that a prosecution case on a particular issue relevant to guilt is strengthened by the absence of the accused from the witness box. Mr Shiu notes that the deputy judge stated that he gave himself, in effect, the “standard” direction, referred to by Lord Hoffmann, when no evidence is led by the defence at trial, namely :
53.Surprisingly, in light of the simple direction of law which the deputy judge stated he adopted Mr Shiu submits that the circumstances of the trial of these applicants are such that it was not only open to the deputy judge to have determined that the inferences of guilt in respect of these applicants to be drawn from the evidence were strengthened but that he may have done so and, if he had done so, he was entitled to do so. 54.The direction the deputy judge gave himself, as cited earlier, makes it abundantly clear that he did not take that course. That he did not do so is put beyond any peradventure by his statement at the end of his Reasons for Verdict :
55.We are satisfied that on the evidence led at trial the deputy judge was entitled to conclude in respect of the 6th applicant, amongst others, as he did do :
56.This proposed ground of appeal fails. Ground 5 57.By this ground of appeal it is contended that the deputy judge found that he could draw the inference that by interviewing PW9 the 6th applicant : “…must be participating in the fraudulent scheme of conspiracy to defraud the victims” and in so doing erred. 58.It is clear that the deputy judge drew the inference that the 6th applicant was a party to the conspiracy performing assigned roles with the intent of accomplishing the common criminal purpose as charged from a consideration of all of the evidence in respect of the 6th applicant, whose case and those of the others he stated he considered separately. That he did not rely only on the evidence of the fact that the 6th applicant had interviewed PW9 in drawing an inference of guilt is made abundantly clear in the Reasons for Verdict :
59.We are satisfied that on the evidence which the deputy judge accepted of the fact that the 6th applicant interviewed PW9 for the employment which he accepted at Talent soon afterwards, together with the evidence as to her conduct in the offices of Talent in the weeks that followed, in the context of the evidence as to her presence in those offices both before and after that time, that the deputy judge was entitled to find that the 6th applicant was a party to the conspiracy and guilty of the charge. 60.This proposed ground of appeal fails. CONCLUSIONS 61.Accordingly, the applications of the 3rd, 4th and 6th applicants for leave to appeal against their convictions on Charge 1 were dismissed. The APPLICATIONS OF THE 1ST, 3RD, 4TH, 6th AND 7TH applicants FOR LEAVE TO APPEAL AGAINST SENTENCE The Reasons for Sentence 62.Talent Elite International Ltd was the vehicle by which the fraud was perpetrated. The judge described it thus :
63.Of the modus operandi the judge said :
In the course of their apparent training the new employees were the subjected to the attention of persons who appeared to be fellow employees or new recruits, whose object was to get them to open their own accounts and trade in silver contracts with Talent. They were known as “Shills”. 64.Of the result the judge said :
65.Of the nature of the fraud the judge said :
Starting point 66.The judge stated that in the circumstances of this fraud he took an initial starting point of four years’ imprisonment. The roles of the applicants 67.The judge stated in terms that in determining the sentences to be imposed the court must reflect the respective positions of the applicants in the hierarchy of Talent. He found the 1st applicant and the second defendant to be the managers and key players in this fraud. They were responsible for the day-to-day management and operation, not only holding themselves out as managers but also acting as persons experienced in the spot silver market, advising and guiding the victims. The judge said of the 7th applicant and the former 8th defendant and prosecution witness at trial that they were proficient “shills”. Of their conduct he said :
68.Of the 3rd and 4th applicants he determined that they were less important in the hierarchy to the actual manipulation of the victims. He found that they contributed to the apparently genuine business ambience. Notwithstanding that that he found that the 6th applicant had acted as an interviewer of a prospective employee and in another capacity he determined not to regard that has being an aggravating factor, but to treat her as falling in that the same category as the 3rdand 4th applicants. Factors in aggravation 69.In respect of the 1st applicant and former 2nd defendant the judge stated that having regard to his finding that they were “key men in the conspiracy” and in light of their management positions an additional six months’ imprisonment to his initial starting point of four years’ imprisonment was appropriate. For them he took a starting point of four years six months’ imprisonment. 70.Having regard to the conduct of the 7th applicant and that of the former 8th defendant as “shills” he determined it appropriate to increase the initial starting point by two months to a starting point of four years and two months imprisonment. Discount 71.The 3rd, 4th and 6th defendants having been convicted of the charge only after trial the deputy deputy judge stated he gave no discount of sentence. 72.In light of the 1st applicant’s plea of guilty tendered at a very late stage in the prosecution case he discounted sentenced by 10 months’ imprisonment, rather than by 18 months’ imprisonment, which would have reflected a discount of the full one-third from the starting point. For similar reasons, he discounted the sentence imposed upon the 7th applicant by 10 months, that being a discount of 20% from the starting point. It is to be noted that the trial had commenced on the 10 February 2003 and proceeded thereafter, no doubt with adjournments for public holidays. However, it was not until the 22 July 2003 that the 1st and 7th applicants pleaded guilty and were convicted. Those pleas of guilty were tendered hard on the heels of the conclusion of the testimony of the former 8th defendant, whose evidence had concluded on the 9 July 2003. She was the last of the 31 witnesses called at trial. The 1st and 7th applicants’ perfected grounds of appeal against sentence 73.Mr Fenton and Miss Lily Yew, respectively on behalf of the 1st and 7th applicants, submit that the deputy judge was in error in not giving those applicants the benefit of a full one-third discount from the appropriate starting point, given the fact of their pleas of guilty to the charge. In the alternative, it is submitted that the discount afforded to those applicants in consequence of their pleas of guilty was inadequate. In addition, it is submitted on behalf of the 7th applicant that the deputy judge erred in determining that 50 months was an appropriate starting point in her case. Further, the 7th applicant was not given credit for her previous good character nor had the deputy judge taking into account her assertions, reported in a probation report, that she had not pleaded guilty earlier because of her concerns about her seriously ill father and that, as a result of the lengthy trial, she had had a pregnancy terminated. For his part Mr Fenton accepts, on behalf of the 1st applicant, that the initial starting point of four years imprisonment and the increased starting point in respect of the 1st applicant were appropriate. 74.The 3rd, 4th and 6th applicant’s are not represented in their applications for leave to appeal against sentence. In their self-drafted grounds of appeal against sentence the 3rdand 4th applicants said that the sentences are “too heavy”. The 6th applicant asserts of the sentence imposed upon him that it was “unfair”. Whilst the 3rd applicant indicated that he had no submission to make in support of his application the 4th applicant handed to the court two medical reports and a letter in support of mitigation of his sentence. The two reports were dated 24 and 27 September 2004 and were compiled by Dr Wan Koon Yat and Dr W.C. Ng respectively, the latter being a senior Medical and Health Officer in the Department of Clinical Oncology and the former a medical officer in the Division of Colorectal surgery. The reports informed the court that on the diagnosis of carcinoma of hepatic flexure a right hemi-colectomy had been performed on the 4th applicant on 18 August 2004. Subsequent pathological examination confirmed Dukes’ C stage carcinoma of the Colon with lymph node involvement. The 4th applicant is now in the process of undergoing six courses of adjuvant chemotherapy, having been discharged from hospital on 1 September 2004. He informed the court that his doctors had advised him that he had only a 35% chance of living five years. In a letter read out in court from his brother and sister a plea was made in misericordiam, reference being made to the discharge of his filial duties arising of the fact that their family, in common with many in Hong Kong, had been split with some family members resident on the Mainland and others in Hong Kong. Next, the court was asked to have regard to the fact of delay from the time the 4th applicant was arrested, as were the other applicants, on 5 July 2000 and the commencement of the trial, 10 February 2003. Further, that the trial itself, lasting as it did 108 hearing days, was punishment itself, worse, he said, than prison. Throughout he had a cloud hanging over him. 75.The 6th applicant invited the court in mitigation of sentence to have regard to domestic hardships that had flowed following her incarceration : her son had not visited her for a year; she relied on friends to continue to rent her home and care for her dogs. Submissions of the 7th applicant in respect of the starting point 76.Miss Yew submits that the deputy judge was in error to draw a distinction between the 7th applicant’s role as a tout or “shill” and the role of the 3rd and 4th applicants in providing support for the facade of a business ambience, which distinction was marked by an additional sentence of two months’ imprisonment in the starting point. Reduced discount for a late plea of guilty 77.On behalf of the 1st applicant Mr Fenton submitted that, notwithstanding the fact that the 1st applicant pleaded guilty only on the 105th day of the 108 day trial, in fact very little court time was wasted thereby because, the charge being a charge of conspiracy in which other defendants had put the prosecution to proof, it was necessary to lead evidence to establish who were the parties to the conspiracy and its ambit. He accepted that the counsel for the 1st applicant had cross-examined witnesses called by the prosecution at some length, but asked the court to note that she did so also, in part on behalf of the 2nd defendant at trial. Further, he submitted that it was on the evidence led at trial that the deputy judge had determined the more serious role of the 1st applicant which had led him to increase the initial starting point for sentence by six months imprisonment for the 1st applicant. As we understood his argument, it was that only by the participation of the 1st applicant in the trial was his role established. It was that which led the judge to increase the starting point, with which increase no issue is taken. However, it was submitted that to then decline to give the 1st applicant a full one third discount of sentence was unfair. 78.Counsel for both the 1st and 7th applicants drew the attention of the court to the decision of a slightly differently constituted division of this court in HKSAR and Hui Wai Ping, (unreported) CACC263/2003. That case also concerned a LocoLondon gold and silver fraud similar in nature. There the conspiracy to defraud resulted in a loss of $451,500. The applicant occupied the role in the conspiracy of a manager in the company, trained victims and persuaded them to open accounts. Several days before the day fixed for the commencement of her trial in the District Court the applicant intimated to the prosecution and to the court that she would plead guilty. On the day fixed for trial she did plead guilty. However, in passing sentence the judge determined that she was not entitled to a discount of one-third from the appropriate starting point for sentence. In effect, he stated that he did so because, in all the circumstances, her plea of guilty had not been made “at the earliest reasonable opportunity”. In the judgment of the court, Stock JA said :
79.That division of this court went on to conclude that there was no such sound reason or circumstance that justified the judge discounting that applicant’s sentence by only 25%. Accordingly, the sentence imposed by the judge was quashed and in its place a sentence imposed which reflected a discount of one-third from the starting point. 80.Counsel for the respondent submits that the decision of Hui Wai Ping is of little assistance to this court, given the fact that these applicants did not plead guilty until the very end of the prosecution case, over 100 days into the trial. He has drawn our attention to the judgments of this court in The Queen v. Chan Chi Sing [1995] 3 HKC 325 and HKSAR v Kan Wa Man , (unreported) CACC503/2003. In the judgment of the court in the former case, Bokhary JA, (as he was then), said of an applicant who had pleaded guilty only after more than a week into his trial :
81.In HKSAR v. Kan Wai Man of the court were seized of an application for leave to appeal by an applicant who had been tried in the District Court on a single charge of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap.212. At the close of the prosecution case he pleaded guilty. The judge adopted a starting point for sentence of six years’ imprisonment, which he discounted for the plea of guilty, imposing a sentence of five years’ imprisonment, that is a reduction of one sixth from the starting point. Of the reduced discount for the plea of guilty, Yeung JA said in the judgment of the court :
82.Mr Shui also drew the court’s attention to the judgment of this court in HKSAR v. Lee Wan, (unreported) CACC284/2002 in which the applicant sought to leave to appeal against a sentence imposed upon him in which, notwithstanding that he had pleaded guilty, the judge at trial and refused to allow the applicant any discount of sentence from the starting point. The plea of guilty had been tendered only after the conclusion of closing speeches following the end of the defence case. The trial judge had said :
This court did not interfere with the sentence imposed and dismissed the application. Conclusions Starting point 83.We are satisfied that in the circumstances of this case the deputy judge was entitled to take as an initial starting point a sentence of four years imprisonment and to increase it, to reflect the roles of the 1st and 7th applicants in the conspiracy to the extent that he did. He described the role of the 7th applicant, as a shill, as being a conspirator :
We are satisfied that the deputy judge was entitled to determine that by that role the 7th applicant’s culpability was less than then the managers, for example the 1st applicant, but greater than what he described as the “ordinary soldiers”, such as the 3rd and 4th applicants. Reduced discount for a late plea of guilty 84.As in many, if not most, aspects of sentencing consideration of a particular factor and the weight to be given to it must be tailored to the circumstances of the individual case. In this case we are satisfied that the deputy judge was correct to determine that in light of the late pleas of the 1st and 7th applicants they were not entitled to a full one third discount of sentence from the starting point. It is to be remembered that the pleas of guilty by those applicants were tendered only after 100 days or so of the trial and after the conclusion of the testimony of their former co-conspirator, the 8th defendant. We do not accept Mr Fenton’s submissions that the 1st applicant’s contest of the trial for that period did not add to the length of the trial nor that the role and culpability of the 1st applicant in the conspiracy was established only by his participation in the trial. In our judgment, in all the circumstances of this case, the discounts of sentence from the starting points given by the deputy judge to the 1st and 7th applicants in consequence of their pleas of guilty were generous. 85.In the Reasons for Sentence the deputy judge does not deal specifically with the fact of the good character of the 7th applicant nor with her contended explanation for her late plea of guilty to the charge. Of the latter, we are satisfied it was irrelevant in mitigation of sentence. Given the seriousness of the offence of which the 7th applicant was convicted and noting, in particular, the evidence led at trial of her role as a shill in persuading PW5 and PW8 to invest $588,000 and $993,800 respectively, all of which money was lost, and the fact that she was a party to the conspiracy over a period of many months her good character availed her very little in mitigation of sentence. 86.In the result, we are satisfied that the sentences imposed by the deputy judge upon the 1st and 7th applicants were entirely appropriate. Accordingly, we dismissed their applications for leave to appeal against those sentences. 87.The very serious illness suffered by the 4th applicant after sentence was imposed upon him, whilst a matter of considerable regret to this court, is not a factor which this court can take into account in respect of sentence, if the sentence imposed by the deputy judge is otherwise appropriate. Article 48(12) of the Basic Law of the HKSAR provides that it is the Chief Executive in whom the power to commute penalties imposed upon those convicted of criminal offences is reposed. This court has said on a number of occasions that the exercise of clemency is for the Executive and not the courts. (See The Queen v. Suen Shek and Others [1988] 1 HKLR 524; HKSAR v. Yeung Kwai Kuen [2002] 3 HKLRD 91.) At the hearing we informed the 4th applicant of his right to petition the Chief Executive for clemency. 88.The delay in the commencement of the trial of the 4th applicant and his co-conspirator’s from the time of their arrest the 5 July 2000 to 10 February 2003 has to be viewed in the context of the size of the investigation that needed to be conducted by the police. The conspiracy had operated over a period of about one year, there were many employee/victims and many potential parties to the conspiracy. It was necessary to obtain the opinion of expert witnesses. It is not suggested that the 4th applicant, or any of the other applicants, was responsible for that delay. Equally, given the size of the police investigation we are satisfied that the prosecution are not at fault for the delay. The length of the trial itself is a matter that has concerned the court. We were told that it was listed for 20 hearing days. It lasted 108 hearing days. We have asked the respondent to make inquiries as to how that came about. However, given that the 4th applicant vigorously contested the charge throughout this is not a matter that the 4th applicant can pray-in-aid. Accordingly, we are satisfied that neither the delay in the commencement of proceedings nor the length of the trial itself are factors relevant to the sentence imposed upon the 4th applicant. In the result, we dismissed the 4th applicant’s application for leave to appeal against sentence. 89.We are satisfied that there is no merit in the bare assertion by the 3rd applicant that the sentence imposed upon him was “heavy” nor in the assertion by the 6th applicant of her post-sentence personal difficulties. Accordingly, we dismissed the 3rd and 6th applicants’ applications for leave to appeal against sentence.
Mr Gavin SHIU, SADPP and Mr Raymond CHENG, GC, of the Department of Justice, for the Respondent Mr Jeffrey FENTON, instructed by Messrs George Y.C. Mok & Co., for the 1st Defendant Mr WONG Po-wing, instructed by Messrs Lo, Wong & Tsui, assigned by D.L.A., for the 3rd and 4th Defendants (re: conviction) Mr Victor LUK, instructed by Messrs To, Lam & Co., assigned by D.L.A., for the 6th Defendant (re: conviction) Ms Lily YEW, instructed by Messrs Tam, Pun & Yipp, for the 7th Defendant The 3rd, 4th and 6th Defendants, in person (re: sentence) |
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