HKSAR v. Suen Chun Kay

CACC 493/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 493 OF 2004

(ON APPEAL FROM DCCC NO. 570 of 2004)

_______________________

BETWEEN

______________________

Before: Hon Stock JA, Yeung JA and Lugar-Mawson J in Court

Date of Hearing:   2 June 2005

Date of Judgment on Conviction: 2 June 2005

Date of Handing Down Reasons for Judgment on Conviction and Judgment on Sentence:  14 June 2005

____________________________________________

REASONS FOR JUDGMENT AND JUDGMENT

____________________________________________

Hon Yeung JA (giving Reasons for Judgment on Conviction and Judgment on sentence of the Court):

Introduction

1.On 2 June 2005, we announced our decision on the application for leave to appeal against conviction. We indicated that we would give our reasons in writing. We also reserved our judgment on the application for leave to appeal against sentence. These are our reasons on conviction and our judgment on sentence.

Background

2.The applicant, Suen Chun Kay appeared before HH Judge To in the District Court (the judge) together with Tang Wai-man (Tang) and Mak Kam-ming (Mak) on an indictment consisting of six charges of conspiracy to obtain a pecuniary advantage by deception.

3.The 1^st charge was a joint charge against the applicant and Tang. The 2^nd, 3^rd and 4^th charges were directed solely at the applicant, whereas the 5^th and 6^th charges were separately directed at Tang and Mak.

4.Tang and Mak pleaded guilty to the 1^st and the 6^th charges respectively. The 5^th charge against Tang was not proceeded with.

5.The applicant pleaded not guilty to all four charges. He was acquitted of the 1^st charge but convicted of the 2^nd to 4^th charges and sentenced to 18 months’ imprisonment for each of the charges with a consecutive term of only six months. The total sentence was therefore two years’ imprisonment.

6.The applicant sought leave to appeal against conviction on the 2^nd and 3^rd charges only, and on sentence.

The Facts

7.M.P. Hong Kong Ltd (MPHK), a direct selling company, operated from an office in L&D House in Cameron Road, Kowloon.

8.Customers could join MPHK as members by making purchases and earning points. Once becoming a member, the customers could in turn recruit new members (lower line members) and earn points.

9.The introducing members were called “the bridges”, and the members who gave advice or processed the membership applications were called “the advisers”. The advisers had to be persons with good knowledge and standing in MPHK, and had a number of lower line members.

10.The applicant was one of MPHK’s “advisers”. He persuaded new customers to become members by making purchases.

11.In the months of January to May 2000, a number of customers attended MPHK on introduction by friends (the bridges). They were persuaded to make purchases from MPHK and to become members. However, they could not afford the amount required.

12.Suggestions were made to the customers that they should apply for credit cards so that they could pay for the purchases and to become MPHK members. There were subsequent attempts, ostensibly made by the customers, to apply for credit cards from banks with bogus employment documents, showing that they were employees of Goldwin Electronic Company “Goldwin”.

13.Goldwin, registered in Mak’s name, in fact did not carry on any business and only operated from the residential address of Tang and Mak.

14.The credit card applications aroused the suspicions of the banks and the matter was exposed.

Prosecution Allegations

15.The prosecution alleged that the applicant and other MPHK customers and/or advisers were part of the conspiracies to obtain credit cards from banks with bogus documents, including false employment records issued by Goldwin, so that customers could pay for the purchases they made from MPHK.

16.The 1^st to 4^th charges separately concerned four customers namely, Lee Kwai Ying (PW1), Wong Ka Chun (PW2), Lau Yan Yan (PW3) and Tang Wai Hei (PW4) (the participants), who were all young people with little or no working experience.

17.The participants gave evidence against the applicant under immunity.

18.The participants, introduced to MPHK by friends, were persuaded to make purchases. When they indicated that they had no money, it was suggested that they should apply for credit cards.

19.The participants were told to complete the credit card application forms with their personal particulars, but told to leave the employment columns blank as they did not have any employment or were unable to produce any employment records. It was suggested to some of the participants that the matter would be fixed.

20.Credit card application forms, ostensibly from the participants, sometimes with their genuine signatures and sometimes with forged ones, found their ways to various banks.

21.Invariably, the credit card applications were supported by bogus employment documents showing that the participants were employees of Goldwin in various positions at salaries of about $10,000 per month.

22.Very often, the applications also contained requests for the credit cards and/or the statements to be sent to Goldwin’s address.

23.When the credit card applications in question aroused suspicions, the applicant together with others coached some of the participants how to deal with enquiries from the banks. In particular, those participants were supplied with bogus documents and told to lie to the banks, saying that they were employees of Goldwin.

Prosecution Evidence Against the Applicant on The 2^nd Charge

24.According to PW2, it was Eddie Ng (a staff member of MPHK) who suggested that he should apply for a credit card.

25.PW2 signed a credit card application form before giving it to Eddie Ng with a copy of his identity card and a gas bill in his mother’s name.

26.When PW2 attended the training session of MPHK, he was introduced to the applicant who explained to him how MPHK operated.

27.Between March and May 2000, a number of banks received credit card applications ostensibly from PW2. Only one of those applications, namely the one submitted to the Standard Chartered Bank on 25 March 2000, was signed by PW2; the others all carried his forged signatures.

28.The credit card applications were all accompanied by identical bogus documents, in particular, employment records showing that PW2 was a sales engineer of Goldwin earning a monthly salary of $9,800. Instead of in his mother’s name, the accompanying copied gas bills were in PW2’s name.

29.All the applications contained requests for the credit cards and/or statements to be sent to Goldwin’s address.

30.In April or May 2000, PW2 was asked to attend a meeting where he saw the applicant, Tang and five to six others. At the meeting, the applicant mentioned about queries from by the banks on their credit card applications. The applicant and Tang then distributed a set of documents with Goldwin letterhead to the attendees.

31.PW2 was unable to recall who actually gave him the documents. He was able to recall that the documents given to him were certificates and payroll advices showing that he was employed by Goldwin as a sales engineer at $9,800 a month. There was also a forged telephone bill in PW2’s name, but not the gas bill in his mother’s name.

32.According to PW2, the applicant and Tang instructed the attendees to lie and say that they were employees of Goldwin. They were also coached how to deal with enquires from the banks in connection with their credit card applications. PW2 kept the set of documents given to him and he produced them at trial as P-15.

33.At an identification parade held in February 2001, PW2 identified the applicant as one of the MPHK people who had interviewed him and who had coached him at the meeting.

Prosecution Evidence Against the Applicant on The 3^rd Charge

34.According to PW3, it was a man called “Ah Kay” who explained the MPHK operation to her. “Ah Kay” also persuaded her to make purchases. As she had no money, “Ah Kay” suggested that she should apply for credit cards to pay for the purchases.

35.“Ah Kay” then took PW3 to a room and took out credit card application forms of about ten different banks for her to choose. PW3 chose three and “Ah Kay” told her to put down her personal particulars and then sign. She left out the occupation column as “Ah Kay” said there was no need to fill those in as, “We will take care of them”.

36.PW3 also produced her identity card for “Ah Kay” to make copies.

37.PW3 said she was not interested in joining MPHK or applying for any credit card. She was just paying lip service and thought if she did not provide proof of her employment, “Ah Kay” would not submit the application forms. She said she did not intend to go to MPHK again and she never did.

38.In March to May 2000, a number of banks received credit card application forms, ostensibly from PW3, supported by bogus employment records. One of the forms bore PW3’s forged signature.

39.The supporting documents consisted of a forged telephone bill bearing the applicant’s telephone number.

40.When PW3 told “Ah Kay” that she no longer wished to join MPHK, she was asked to meet him to have a talk. PW3 subsequently met “Ah Kay” in a Yaumatei restaurant with a friend and “Ah Kay” told her that some banks might be making enquiries about her credit card applications.

41.“Ah Kay” gave her information about Goldwin and told her to respond by saying that she was employed by Goldwin. “Ah Kay” also wrote on a piece of paper particulars to enable PW3 to respond to enquiries from the banks. PW3 produced the piece of paper as P-23.

42.“Ah Kay” also instructed PW3 to delay going to the police station if so required by the police and promised to engage a solicitor to accompany her if she could not stall the police’s request any longer.

43.PW3 attended an identification parade in 2002 and identified the applicant as “Ah Kay”. However, PW3 said she was not sure of her identification.

The Defence Case and Evidence

44.The applicant was a well-educated person with a degree in computer science from an Australian university.

45.He said he came to know Tang and Mak in 1993 when studying at City University and was subsequently introduced by Tang to work part time at Japan Life – a direct sale company.

46.In 1999, the applicant started to work part time in MPHK on Tang’s introduction. He started to work full time in April 2000. Tang was his team leader and Mak, his senior team leader.

47.The applicant denied that he was involved in the credit card application of any MPHK customer.

48.The applicant said he had no recollection of seeing PW2 at all. He said, however, that he might have been present in a training session attended by PW2.

49.He said on that afternoon, Tang telephoned him and said credit card applications by Eddie’s team members required assistance and as the applicant had experience in applying for a student credit card when studying at City University, he should assist by giving a talk to those members.

50.The applicant said he happened to have just finished seeing a client and therefore agreed and did give a talk to some members of MPHK on what information to provide to banks in credit card applications. The applicant said apart from Eddie, Tang and Mak, ten others were present during the talk.

51.The applicant denied giving any documents, let alone bogus ones to PW2 at the meeting or telling PW2 and the others to lie about their employment with Goldwin.

52.The applicant also denied having met PW3 or discussing with her about enquiries from banks and the police. The applicant, whilst not challenging PW3’s evidence, suggested that PW3 had wrongly identified him as “Ah Kay”. He said there were over a hundred members in MPHK all known as “Ah Kay”.

53.The applicant said he put a telephone bill in a locker inside Tang’s room together with a scheme book and a product list of MPHK. He kept the locker unlock so that other “advisers” might have access to the scheme book and the product list.

54.The suggestion was that someone must have taken his telephone bill from his locker and forged it to support PW3’s credit card applications.

The Judge’s Findings on the 2^nd and 3^rd charges

55.The judge found PW2 to be a truthful and reliable witness. The judge accepted PW2’s evidence that the applicant and Tang were present at the meeting in April or May 2000 when the applicant mentioned about the enquiries by the banks.

56.The judge also accepted that at the meeting, the applicant and Tang gave PW2 and others bogus employment records ostensibly issued by Goldwin, and coached them how to answer questions from the banks. In particular, the applicant and Tang instructed them to lie and say they were employees of Goldwin.

57.The judge rejected the applicant’s explanation as to how he happened to be present at the meeting. He said that applying for a credit card was a simple procedure without any technical difficulties and there was no need for Tang to pull the applicant out from his full time employment to give a talk on a subject that she could competently handle herself.

58.In any event it was too much of a coincidence for the applicant to be able to get out of his office, as he just happened to have finished seeing a client.

59.On the evidence of PW2, the judge found that the applicant was a party to the conspiracy to obtain credit cards in PW2’s name.

60.The judge rejected the applicant’s evidence that only his parents would call him “Ah Kay”. In fact according to PW2, the applicant was introduced to him as “Ah Kay”. The judge concluded that the applicant was known as “Ah Kay” in MPHK.

61.The judge also concluded that the forged telephone bill belonged to the applicant as it contained his telephone number.

62.The judge rejected the applicant’s explanation that his telephone bill was kept in his unlocked locker so that other “advisers” might have access to his scheme book and the product list. The judge opined that the telephone bill must have been addressed to his home address and he had no reason to place it in his unlocked locker.

63.The judge concluded that the applicant’s telephone bill was used to support PW3’s credit card applications and that he was connected with the bogus Goldwin documents.

64.The judge also concluded that the applicant was the “Ah Kay” referred to by PW3.

65.The judge rejected the submission that the applicant could not have conspired with PW3 to defraud the banks as PW3 said she did not believe “Ah Kay” would submit the application forms. The judge made the following comments in his reasons for conviction:

“On the issue of mens rea, the question is whether PW3 agreed with (the applicant) that the deception should be carried out and at the time of so agreeing she intended that the deception should be carried out. PW3 said she did not wish to join MPHK and did not wish to apply for a credit card. She thought by not supplying the proof of employment, (the applicant) would not forward her application form to the bank… One has to distinguish between intention in a technical sense and desire. A person is taken to intend the necessary consequence of his acts irrespective of his desire and wishes… In law, (one) must (be) taken to have intended the necessary consequence of his agreement.

…it was understood by the parties that Ah Kay would ‘take care’ of the application forms by concocting some employment particulars to be filled in the forms. Thus PW3 acknowledged how Ah Kay would take ‘care of’ of the application forms she placed in his hands. She signed the purchase orders for 15 orders. She agreed to pay by applying for credit card. She signed the forms and armed Ah Kay with copies of her identity card for the purpose of making the application. She was not going to provide Ah Kay with her true employment particulars. In the circumstances, the necessary consequences of her placing the signed credit card application forms in Ah Kay’s hands is that Ah Kay will fill in the false particulars of employment pursuant to their agreement. Despite her subjective wishes that Ah Kay would not forward the forms in law she must be taken to have intended the necessary consequences that pursuant to the agreement Ah Kay would forward the forms to the banks in the way he indicated he would ‘take care of them’ with the effect that a deception would be carried out and she must also be taken to have intended at the time of the agreement that the deception should be carried out.”

66.The judge concluded that the 3^rd charge against the applicant had been proved.

Grounds of Appeal

67.Mr Clive Grossman SC (Mr Raymond WS Chan within him) raised separate grounds of appeal in respect of the 2^nd and 3^rd charges.

68.He suggested that the judge should not have convicted the applicant on the evidence of PW2, as his evidence was tenuous and contradicted by the applicant.

69.Mr Grossman emphasized that there had been a long lapse of time and that PW2 was uncertain in his recollection of the facts.

70.Mr Grossman pointed out that the only evidence linking the applicant to the conspiracy was the meeting in April or May 2000, yet PW2 was uncertain about what had happened when (1) he could not remember how many people attended the meeting; (2) he did not know who gave him his documents or what documents were given to the other attendees; (3) the applicant only talked generally about how to apply for a credit card; and (4) he could not recall clearly what the applicant said as it could be either the applicant or Tang.

71.Mr Grossman suggested that the judge’s rejection of the applicant’s reasons for being present at the meeting was illogical and that he should not have found his defence “incredible”.  In the circumstances, the conviction on the 2^nd charge was unsafe and the applicant should be given the benefit of the doubt.

72.As for the 3^rd charge, Mr Grossman said the evidence linking the applicant to “Ah Kay” was tenuous and that the presence of the forged telephone bill with the applicant’s telephone number was insufficient to link the applicant to the applications for credit cards in PW3’s name.

73.Mr Grossman contended that the judge should not have relied on PW2’s evidence that the applicant was known as “Ah Kay” and used that evidence to corroborate PW3’s evidence. It was pointed out that at the time PW2 gave evidence identity was not in issue and the applicant’s counsel was deprived of the opportunity of cross-examining PW2 about this matter.

74.Mr Grossman suggested that there must be many other people in MPHK who were closely related to the Goldwin documents. He further suggested that the judge should not have taken into account the purported identification by PW3 that the applicant could be “Ah Kay” at all, after having said that he attached no weight to such identification and having stopped defence counsel from cross-examining PW3 on the matter.

75.In any event, as PW3 never intended to take part in applying for the credit card and was just paying “lip service” to “Ah Kay”, there could not have been an agreement that an offence should be committed; hence there could not be any conspiracy between the applicant and PW3.

Discussion

76.We deal with the applicant’s conviction on the 3^rd charge, first. The law on conspiracy is clear. There must be an agreement between two or more parties to commit an offence.

“A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act itself,…”  (per Willes J in Mulcahy v The Queen [1868] LR 3 HL 306)

“The crime of conspiracy requires an agreement between two or more persons to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime that constitutes the necessary mens rea for the offence.” (per Lord Griffiths in R v Yip Chiu Cheung [1995] 1 AC 111)

77.Mr McWalters SC (Mr Eddie Sean with him), for the respondent, suggested that participation in the carrying out of the conspiracy by each conspirator was not required to establish a charge of conspiracy to commit a crime. He sought reliance on R v Siracusa (1989) 90 Cr App R 340 referred to in HKSAR v Cheung Sing Chi [2004] 2 HKC 351. He suggested that by implication, the judge must have rejected PW3’s evidence that she did not intend to apply for the credit cards.

78.It is not, with respect, helpful to talk in the present context of intending the natural consequence of one’s act. The issue is straightforward, namely, whether PW3 had the necessary meas rea, i.e. an intention to be a party to an agreement with the applicant to do an unlawful act.

79.In R v Anderson [1986] A.C. 27, Lord Bridge said at p. 39:

“But, beyond the mere fact of agreement, the necessary mens rea of the crime is, in my opinion, established if, and only if, it is shown that the accused, when he entered into the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve. Nothing less will suffice;…”

80.The judge approached the matter in this way. He said that: “A person is taken to intend the necessary consequences of his acts irrespective of his desire and wishes”. The clear implication here is that because the application forms had been filled in and because the applicant had said that “we will take care of [the employment particulars]”, it must have been understood by all, including PW3, that the forms would be completed and sent off, even if she secretly hoped that that might not happen.

81.This was not, however, the evidence. Her evidence (page 159Q appeal bundle) was that Ah Kay knew where she was working (compare the judge’s contrary recitation of the testimony that Ah Kay did not know where she was working: page 54T of the Reasons) and, in particular, as to the forms, “I thought he would put them aside because if I don’t submit my employment to prove they cannot submit anywhere” (page 159H). This was her uncontroversial testimony and it is difficult in the circumstances to conclude that there was sufficient evidence to establish that she was party to the conspiracy.

82.Since the 3^rd charge alleged that the applicant conspired with PW3 and none other, that charge was not made out and accordingly the application for leave in respect of the conviction upon the third charge must be granted and treating the hearing of the application as the appeal, that appeal was allowed and that conviction set aside.

83.We turn now to the applicant’s conviction on the 2^nd charge. The meeting referred to by PW2 happened many years ago and it is entirely understandably that PW2 was unable to recall the exact details.

84.However, he said he had a good recollection of the event in general and his memory was assisted by the documents that he was given and which he kept. He produced at trial those documents as P-15.

85.PW2 was unable to remember who actually gave him the documents, but clearly as the applicant and Tang were together and were acting in concert with one another, it must have been they (i.e. the applicant and Tang) who gave him the documents.

86.PW2 might not be able to remember what exactly the applicant or Tang had said; he was, however, adamant that the applicant and Tang were instructing him and others who were present to lie about their employment with Goldwin.

87.To some extent, the applicant’s evidence supported PW2’s recollection when he admitted to have been present at the meeting at Tang’s request.

88.We have carefully considered the evidence of the prosecution, in particular the testimony of PW2. In our view, the judge was perfectly entitled to accept PW2’s evidence that the applicant together with Tang gave him the bogus documents and coached him to lie about his employment with Goldwin.

89.PW2 had no motive to lie against the applicant. Indeed no issue was taken on his credibility. In our view, PW2 could not have been mistaken as to what, in substance, happened at the meeting in question.

90.PW2 was adamant that the applicant did, together with Tang, distribute bogus documents to him and coached him to lie to the banks in connection with their enquiries.

91.By the time of the meeting in April/May 2000, the only credit card application form signed by PW2 had already been submitted to the bank. The other application forms did not have PW2’s genuine signatures. There was no question of PW2 requiring any assistance in filling out any of those applications.

92.The applicant’s explanation of his reason for attending the meeting could not be genuine. The judge was entitled to reject such explanation.

93.On the evidence accepted by the judge and the undisputed evidence relating to PW2’s credit card applications, the conclusion that the applicant was part of the conspiracy to obtain credit by falsely representing that PW2 was an employee of Goldwin was inescapable.

94.We did not find the conviction on the 2^nd charge against the applicant unsafe or unsatisfactory at all. He was rightly convicted. The application for leave to appeal against conviction in respect of the 2^nd charge was therefore dismissed.

Sentence

95.In sentencing the applicant, the judge pointed out that young people were lured into making purchases that they could not afford and then persuaded to apply for credit cards, using bogus employment records.

96.The judge emphasized that there were multiple credit card applications, some with forged signatures and that those applications often contained requests that the credit cards and/or statement to be sent to Goldwin’s address.

97.The judge further pointed out that if the deception were successful, those involved in the criminal design would have possession of a large number of credit cards that they could use with forged signatures.

98.As the statements were directed to Goldwin’s address, neither the banks nor the purported cardholders would be able to discover the fraud until significant losses had been incurred.

99.Hence, the fraudulent scheme, which was premeditated, was set up not merely to assist others to obtain credit cards to pay for the purchases, but with the intention of defrauding the banks. The scheme had the potential of defrauding banks of large sums of money, leaving the purported cardholders with possible criminal and civil liabilities.

100.The judge took the view that the applicant was not the mastermind, as he did not supply the Goldwin address and that the credit limits of the credit cards were small. The judge also took into consideration that no one suffered any actual loss and that there had been a delay in the prosecution.

101.The judge stated that he took a starting point of 18 months for each offence and a total sentence of two years’ imprisonment appropriate. He therefore sentenced the applicant to 18 months’ imprisonment on each charge and ordered six months to run consecutively.

102.Mr Grossman suggested that the judge was wrong to conclude that it was the applicant who forged the signatures on the credit card applications and requested the credit cards and/or statements to be sent to Goldwin’s address.

103.Mr Grossman said Tang and Mak were more culpable than the applicant and yet Tang was only sentenced to 12 months’ imprisonment and Mak to 10 months’ imprisonment; hence there was an unusual and unfair discrepancy in the sentences between them even after one took into account the credit due to Tang and Mak for their pleas of guilty.

104.Mr Grossman also suggested that the delay of four years in bringing the prosecution justified a further reduced sentence, particularly when the applicant had rehabilitated himself in the meantime.

105.It seems, from the sentencing remarks made when Tang and Mak were sentenced, that the true starting point taken by the judge in relation to these offences was two years’ imprisonment for each, with a reduction of six months for delay and in the case of Tang and Mak, a further one third reduction for their pleas, although in Mak’s case a starting point of 21 months was taken.

106.It is true that the applicant, Tang and Mak were all parties to a general scheme to defraud banks. However, it is clear, as indicated by the judge, that Tang and Mak were in fact even more culpable than the applicant in the scheme, in that: 

“In the present case there is also this unfair preference in prosecuting the defendants. The 2^nd and 3^rd defendants (Tang and Mak) are more senior up the hierarchy of membership. Obviously, they or at least (Mak), played a greater role in these conspiracies by registering Goldwin and using their residential address as its business address, which would enable them to receive the cards had the deception been successful. They are not prosecuted for all they deserved, while (the applicant), who was obviously a figure of lesser culpability was prosecuted for every single charge the police can think of. This creates difficulties in sentencing. I can only sentence (Tang and Mak) for what they have been charged and admitted but not what they have not been charged. That cannot reflect their culpability in the criminal design. (The applicant) effectively ended up with more on his plate for his lesser role in the overall criminal design than (Tang and Mak) for their far greater involvement…

What I feel most aggrieved about is that this court is forced to dispense injustice because of DOJ’s failure to appreciate the true nature of the offences…”

107.On the other hand, the prosecution chose to proceed only with one charge against Tang and Mak, and the supporting facts presented to the court failed to fully and truly reflect their roles in the overall scheme.

108.The respective “Summaries of Facts” in support of the charges against Tang and Mak simply stated that each of them was involved in the submission of one credit card application to a bank, supported by bogus Goldwin documents. There was no mention of the prosecution’s case that the scheme involved multiple applications for credit cards; that Goldwin was registered in Mak’s name; that Goldwin did not carry on any business at all and operated from the residential address of Tang and Mak; and that the banks were asked to send the credit cards and/or statements to Goldwin’s address.

109.In sentencing Tang and Mak, the judge said, inter alia, the following:

“Taking into consideration the circumstances of the offence and D2’s (Tang) involvement, which I do not wish to repeat hear, I consider an appropriate starting point for one single conspiracy would have been 24 months. In view of the delay, I adopt a lower starting point of 18 months. This is the same starting point I adopted for D1 (the applicant). I treat (Tang) as no more culpable than (the applicant). I would have increased the starting point if I had evidence that she was the mastermind and that she forged the signature of the applicant (of the credit cards), etc (Emphasis added)…

As I have indicated earlier, there was only one credit card application from filled in by D3 (Mak) on behalf of the applicant (of the credit card) which the prosecution sought to produce. The signature of the applicant was genuine and that form contained a direction that the credit card and bank statement were to be sent to the applicant’s home address. Thus the aggravating features with which I am concerned are not present in this case…On this single charge of conspiracy, because of the address factor and the genuine signature of the applicant on the application form, I am also forced to draw the most favourable inference in favour of D3 that the purpose of the conspiracy was to enable the applicant to pay for the purchases from MPHK and that the applicant did intend to repay the bank.” (Emphasis added)

110.Tang and Mak might have been sentenced on an artificial basis on summaries of fact which did not truly and properly reflected their culpabilities in the entire fraudulent scheme in which they took part with the applicant; however, this sometimes happens in our system of justice. 

111.Nonetheless, whilst the judge was correct in sentencing Tang and Mak on the basis of the charges and facts presented against them, there was evidence in the case involving the applicant alone that his role was in fact less than that of Tang and Mak and we think, albeit, with some reservation, that that should be reflected in a reduction of his sentence; bearing in mind also that one of the convictions had now been quashed.

112.We are persuaded that justice will be served if we order the 18 months’ sentence for each of the 2^nd and 4^th charges to run concurrently, making a total sentence of 18 months’ imprisonment.

113.We grant leave to the applicant to appeal against sentence and treating the application as the appeal proper, we allow the appeal to the extent indicated. The total sentence is reduced from two years to eighteen months’ imprisonment.

Mr I C McWalters SC, SADPP and Mr Eddie Sean, SGC for the Respondent.

Mr Clive Grossman, SC and Mr Raymond WS Chan instructed by Messrs Fung & Fung for the Applicant.