HKSAR v. Leung Tzi Chiu

CACC 154/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 154 OF 2004

(ON APPEAL FROM DCCC NO. 479 OF 2003)

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BETWEEN

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Before : Hon Stock JA and Gall J in Court

Dates of Hearing : 30 June 2005

Date of Judgment : 30 June 2005

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J U D G M E N T

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

1.This is a renewal of an application for leave to appeal against sentence.  The applicant was sentenced on 19 March 2004 by Judge Sweeney in the District Court to a term of three years four months’ imprisonment after trial upon a charge of conspiracy to defraud. 

2.The fraud in question was practiced on a Mr Honda who needed funds for a construction project in Japan, and he approached someone called Yashimoto who said that he could raise funds in Hong Kong for the purpose and with that objective introduced Mr Honda to the applicant.  The applicant represented that he could raise USD 20 million for a processing fee of USD 850,000.  The further representation was made that the processing fee would be held by a solicitor in Hong Kong as stakeholder and that should the monies not be raised as planned, he would be reimbursed.  Thereafter, Mr Honda caused ¥100 million to be paid into Yashimoto’s bank account, and then Yashimoto transferred USD 700,000 into the bank account of the solicitors in Hong Kong and the applicant prepared certain agreements by which, in return for the processing fees, the applicant’s company would cause two standby letters of credit, each in the sum of USD 10 million, to be issued within twenty days in favour of Mr Honda.  Contrary to the agreement and before any letter of credit had been obtained, the applicant and Yashimoto instructed the solicitors to pay out the total sum of the amounts deposited with them, in part to a company controlled by the person who was the second defendant at trial and was acquitted; and as to USD 326,077 to this applicant and his company.  No letter of credit was ever provided to Mr Honda and he never saw any of his money; nor was he able to contact either Yashimoto or the applicant.  In his Reasons for Verdict the judge held that the applicant and Yashimoto never intended to obtain letters of any description from Mr Honda and that the whole scheme was a device for obtaining the substantial processing fee that was paid.  He found that the applicant was not, as had been suggested, misled by Yashimoto in a material particular, since the applicant himself drafted the agreements, since the applicant himself obtained the solicitors as stakeholders, and since the applicant directed them to disperse most of the funds.

3.The applicant was aged 53 years at the date of conviction and was previously of clear record.  The judge noted this, but pointed out that the scheme was well planned and sophisticated and that the victim had lost a large sum of money.  The judge took a starting point of three and a half years’ imprisonment and made a small deduction of two months to give credit for the fact of a clear record at the age of 53.

4.The applicant initially sought leave to appeal against conviction and sentence but has prior to today abandoned the application in relation to conviction and that therefore stands dismissed.

5.In his extensive written grounds of appeal, the applicant persists in his allegation, as he has done before us orally today, in the assertion that he did not intentionally plan to deceive Mr Honda.  He refers to regret for what he terms the ‘mistake’ he made, and says that he had full confidence that he could acquire a loan from a bank in Taiwan.  This persistence is quite astonishing in the light of the facts of this case.

6.We think that the sentence imposed by the learned judge was, in all the circumstances, markedly low, so much so that we have considered whether or not to exercise the powers we have to increase the sentence.  The appeal is impertinent and we note that when the single judge refused leave he took the trouble specifically to remind the applicant of the court’s power to order loss of time, even though such a reminder is not a pre-requisite for the exercise of that power.  The application for leave to appeal is dismissed.  Furthermore, and having heard the applicant on the matter, we exercise our power under section 83 of the Criminal Procedure Ordinance, Cap. 221 and order that one month of the period served by the applicant between the date upon which sentence was imposed and this appeal shall not count towards the sentence.

Mr Gary Lam, SGC of Department of Justice, for the Respondent

The Applicant, Leung Tzi Chiu, in person, present