HKSAR v. Guan Liqing and Others

CACC 148/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 148 OF 2005

(ON APPEAL FROM DCCC NO. 1195 of 2004)

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BETWEEN

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Before : Hon Stuart-Moore VP and Burrell J

Date of Hearing : 28 October 2005

Date of Judgment : 28 October 2005

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.The applicants (D1, D2 and D4) were convicted on a variety of charges following a trial in the District Court before Judge Sweeney and now seek leave to appeal against the sentences imposed upon them on 22 March 2005.

2.The case was aptly described by the judge as concerning “yet another form of ‘street scam’ designed to part vulnerable and gullible elderly ladies from their money …… perpetrated by a team of Mainland visitors to Hong Kong on two-way travel permits”.  D1 was convicted on the two charges she faced (charges 3 and 4) for which she received 3 years on charge 3 and 1 year to run concurrently on charge 4.  D2 was also convicted on the two charges against her (charges 3 and 5) and was sentenced to concurrent terms of 3 years and 1 year respectively.  D4 was more heavily involved than the others.  On the four charges against him (charges 1, 2, 3 and 6), he was sentenced to 3 years on charge 1, 3 years on charge 2 of which 2 years was ordered to run consecutively with the sentence on the 1^st charge, 3 years on charge 3 of which 9 months was ordered to run consecutively to the 2^nd charge and 1 year on charge 6 to run concurrently with the sentence on the 3^rd charge.  In short, charges 1 and 2 alleged obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap. 210, charge 3 was a Common Law conspiracy to defraud and charges 4, 5 and 6 alleged the possession of false instruments, contrary to section 75(1) of the Crimes Ordinance, Cap. 200, relating in D1 and D2’s cases to a false Bank of China working permit and some name cards and, in D4’s case, relating to a false name card.  The 1^st offence was committed on 25 May 2004, the 2^nd offence took place on 2 August 2004 and the dates of the conspiracy in charge 3 were alleged to have been between 1 and 31 August 2004.  The 4^th, 5^th and 6^th charges arose from the items found in the applicants’ possession when they were arrested on 31 August 2004.

The facts

3.We do not propose to set out the facts in any detail.  These were heartless frauds, committed in a manner with which the District Court and, thereby, this court is becoming all too familiar.  The judge provided an eloquent summary of the main criminality when, in his Reasons for Sentence, he said:

“	3.	The modus operandi here was for one or perhaps two of the gang members to approach a pedestrian on the street with a sad tale of family illness; of needing to raise cash quickly for the kidney transplant of a beloved uncle in the New Territories; of how those nasty people at the Hongkong Bank would not take her Australian dollars because they were Mainland Chinese who spat on the floor.  Then the nice man from the Hongkong Bank appears on the scene (wearing what looks like a Hongkong Bank staff card) and pretends to have great sympathy for this Mainlander and offers his assistance to cash her Australian dollars.  However, by this stage, the Mainlander says that she no longer trusts Hongkong Bank staff so she refuses to deal with him, so after much negotiation he comes up with a simple solution and he turns to the Hong Kong lady and says “What if you give her Hong Kong dollars in exchange for the Australian dollars and I will change those Australian dollars back into Hong Kong dollars for you later on?”
	4.	By this stage the Hong Kong lady has been with them for about an hour and is convinced by both the tale of woe and the trustworthiness of the “bank manager”. She goes to the bank and, encouraged by the bank manager, takes out as much money as she can in order to help this unfortunate woman with her family problems. She then hands over everything she has. (Both PW1 and PW2 were housewives with unemployed husbands.) PW1 handed over $50,000 [charge 1] an PW2 handed over $70,000 [charge 2] in return for useless or valueless demonetised Brazilian and Peruvian currency.
	5.	The gang members then disappear.
	6.	So this cynical syndicate exploited not only the kindness of the Hong Kong ladies but also their inability to read English.
	7.	Fortunately for other potentially gullible Hong Kong ladies the police at Kwun Tong district were equal to the task. They set up a task force to keep a watch out for gangs intercepting pedestrians on the street and thereby arrested these particular defendants on 31 August 2004. It is somewhat unfortunate that all of their hard work was not fully rewarded because a fifth gang member was in fact granted bail by the High Court and it comes as no surprise to learn that she quickly disappeared to where she came from.” (Appeal bundle pp. 29-30)

D1 and D2’s applications

4.D1 and D2 were both unrepresented in these proceedings.  Neither of them put anything before the court, either in their written grounds or in court before us, which could make any difference to the sentences rightly imposed on them.  D1, in particular, spoke of illness amongst her family members as both she and D2 had done in the court below.  Again, the judge dealt with this aspect in a manner which carries our full support.  He said:

“

9.

D1 and D2 are both divorcees whereas D3’s husband died in 2003. D4 is married. All four defendants have children and all have ‘elderly parents who are ill’. I have already warned defence counsel this morning that I will not pay the slightest attention to the alleged state of health of any of the defendants’ relations because we have already had too much cynical use of ‘sick relatives’ in the modus operandi of this particular scam.” (Appeal bundle pp. 30-31)

Their applications are without merit and are dismissed.

D4’s application

5.D4 was represented by Mr Robert Tibbo who submitted that a sentence of 5 years and 9 months was manifestly excessive in view of the criminality involved in what he termed a “relatively unsophisticated” method of operation, and ignored the totality principle so far as charge 3 was concerned.  Mr Tibbo argued that there was “commonality” between charges 1 and 2 which ought to have resulted in “wholly or predominantly concurrent sentences” and that, because the conspiracy in charge 3 took place over a relatively short time and in any event overlapped with the date in the 2^nd charge, the judge appeared to have “forgotten altogether” that he had to consider overall totality when imposing a consecutive term of 9 months on charge 3.  Mr Tibbo also laid emphasis on the fact that $64,000 from the ill-gotten gains made by this gang of fraudsmen was recovered and that the amount of money involved in these frauds was not as large as in many other cases to come before the courts.

6.In placing these submissions before us, Mr Tibbo provided us with a list of 21 authorities, of one kind or another, most of which were apparently intended to make the point that judges dealing with other culprits in comparable scams at first instance have often extended greater leniency than was accorded to D4 in these proceedings.  We derived little benefit from any of these cases.  The authorities provided had, of course, to be copied and each bundle, consisting of several hundred pages, was effectively a total waste of time, money and paper.  Having said this, we accept from Mr Tibbo that the provision of so many authorities was done in a spirit of good intention in the hope that it might assist the court.

7.We should not have to keep repeating that we strongly disapprove of a plethora of authority being produced before us which merely confirms well-established principle or provides demonstrations of first instance sentencing which carry no statement by this court either of principle or as to the provision of guideline tariffs for sentence in future cases.

8.Our concern in the present context is whether the sentence imposed on D4 was appropriate on the facts of the case against him, particularly bearing in mind that a partially consecutive sentence was imposed on charge 3 when this offence of conspiracy encompassed the 2 August 2004 when the deception in charge 2 was committed.  Having considered all of Mr Tibbo’s submissions, it was only this aspect which we found had any real substance to it.

9.The recovery of the proceeds of crime is not, as we have so often said before, the same as voluntary restitution or the payment of compensation in circumstances where the victim would otherwise have received no recompense.  These sums were recovered solely as the result of the efficiency of the police operation and, although the frauds may not have concerned the very large amounts which are often involved in many of the commercial crimes which come before this court, this was a gang that targeted those who could least afford to lose their savings by preying on their kindness and naïvety.

10.The judge plainly had the question of totality well in mind when imposing partially concurrent sentences on charges 2 and 3 and a wholly concurrent sentence on charge 6.  The individual starting points which the judge adopted are not criticised and so the central question we have had to consider is whether the sentence of 5 years and 9 months’ imprisonment can stand in the light of the concern we expressed earlier (see para. 8 above).

11.At the age of 37, D4 had been engaged in this kind of fraud, as a visitor to Hong Kong, between May and August 2004.  No application was made by the prosecution for an enhanced sentence under the Organized and Serious Crimes Ordinance, Cap. 455, but the judge had ample powers of sentence to deal with a case of this kind and it was clearly open to him to say, as he did in his Reasons for Sentence, that deterrent sentences were called for where overseas visitors abuse the hospitality of Hong Kong by such “highly organized, well-planned and cynical gang activities”.  The judge also commented, in our view rightly, on the submission of a letter from D4 on the day of sentence which purported to express remorse, by saying:

“	This is another example of his cynicism. If he had the slightest remorse he would not have pleaded not guilty to this trial.” (Appeal bundle p. 31)

12.All these considerations bring us back to the question whether it was right for an additional penalty for the conspiracy in charge 3 to be imposed when the date of the substantive offence in charge 2 was already covered by the conspiracy.  We are satisfied that, as a matter of principle, the sentence on charges 2 and 3 ought to have been made concurrent in the particular circumstances which prevailed on these facts.

13.Accordingly, in D4’s case we have concluded that leave should be given and that his sentence should be reduced to a total of 5 years’ imprisonment.

14.Treating the hearing as the appeal, we grant leave and quash the order that 9 months of the sentence on charge 3 should run consecutively to the sentence on charge 2.  In its place we make an order that the whole of the 3-year sentence on charge 3 should run concurrently with the sentence on charge 2.  This will have the effect that D4’s sentence is reduced in its totality to 5 years’ imprisonment.  To this extent, the appeal is allowed.

Mr David Leung, SGC of the Department of Justice, for the Respondent.

Mr Robert Tibbo, instructed by Messrs Francis Kong & Co., for the 3^rd Applicant (D4).

The 1^st Applicant (D1), in person.

The 2^nd Applicant (D2), in person.