HKSAR v. Chan Mei Sze

CACC000571/2002

CACC 571/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 571 OF 2002

(ON APPEAL FROM DCCC 402 OF 2002)

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Coram: Hon. Stuart-Moore V.P., Seagroatt, J. & Jackson J in Court.

Date of Hearing: 24 July 2003

Date of Judgment: 24 July 2003

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J U D G M E N T

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Seagroatt J: (giving the Judgment of the Court)

1.The facts of this case in which the Applicant was convicted as the 3rd Defendant, appeared in the judgment, also CACC 571 of 2002 which we have just given in the case of three Defendants who sought leave to appeal against their conviction. The sentence imposed upon this Defendant for her part in the conspiracy to defraud, of which she was convicted after trial, was 3 1/2 years. In imposing sentence, Deputy District Judge Michael Jenkins stated that she had been arrested on two occasions and was instrumental in persuading one of the victims to part with a substantial sum of money $390,000.

2.The main grounds put forward by this Defendant in support of her contention that her sentence was excessive were that she had no previous convictions and that the contents of reports were ignored. It is important to note that in her case she was arrested on the first raid on 9 May, and again on the third raid on 19 July, when she was still involved in the conspiracy to defraud.

3.In the case of HKSAR v. Chiang Chun Wai, HKLRD 2001 Year Book 336, my Lord the Vice-President said:

"We consider, in view of the value of the losses and the sophisticated nature of this fraud, that those who play their part in both phases of the conspiracy were fortunate to have received sentences of only 4 years. Those who enter into heartless and cruel 'scams' of this kind and who are prepared to fleece gullible and blameless victims of as much of their hard-earned savings as they can lay their hands on, should expect to receive heavy sentences, not merely as a punishment for the offence, but as the deterrent to others with a similar mind."

4.Those comments are equally apposite in this case. Furthermore, the Vice-President went on to say that continuing to participate in a conspiracy following arrest on an earlier raid can be "directly equated with a further offence committed whilst on bail for which a consecutive sentence in whole or in part is generally imposed". A 4 years' sentence was approved in that case as a starting point for such conspiracies. It was suggested that would be inadequate for defendants involved in a conspiracy where, having been arrested once, they continued with the conspiracy whilst on bail. Good character in such frauds is of negligible relevance, and in this defendant's case in particular, it is of none, since she continued to participate in the conspiracy after her first arrest.

5.The Deputy Judge set out fully his reasons for the sentence he imposed upon her and was correct in the distinction he drew between the positions of various defendants. Accordingly, we consider the sentence to be, if anything, on the low side, and her application is dismissed

Representation:

Mr. Gavin Shiu, SADPP (Ag.), of Department of Justice for the Respondent.

3rd Defendant (1st Applicant) in person.