HKSAR v. Wong Po Lam

CACC 163/2007

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 163 OF 2007

(ON APPEAL FROM DCCC 202/2007)

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BETWEEN

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Before: Hon Tang V-P and Fung J in Court

Date of Hearing: 22 April 2008

Date of Judgment: 22 April 2008

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J U D G M E N T

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Hon Fung J

1.The Applicant Wong Po-lam pleaded guilty before Deputy District Judge Chainrai to one charge of fraud (Charge 1) and two charges of theft (Charges 2 & 3).  He was sentenced to 2 years and 11 months imprisonment, 11 months of which was made concurrent to a 5 years term in DCCC 1036/2004, making a total of 7 years imprisonment.

Facts

2.There are 2 victims in the present case, both female masseuses.

3.The Applicant told the first victim (PW1) that he was a jewellery merchant in Canada.  He wanted to open an account in Hong Kong for inward remittances but could not do so because of the illegal nature of his business.  He asked PW1 to open an account to receive the remittances and he would give her a reward of US$10,000.

4.The Applicant told PW1 that in order for the remittances to be made, PW1’s account should have sufficient funds in balance.

5.PW1 believed the Applicant.  She opened an account and deposited HK$160,000 and HK$130,000 of her own money into the new account.

6.The Applicant arranged for the deposit of 3 cheques of HK$150,000, HK$780,000 and HK$780,000 into PW1’s account.  PW1 checked the balance and saw the increased credit.  The Applicant asked PW1 to transfer HK$150,000 to another account.  Subsequently, the 3 cheques bounced and the credits were reversed.

7.The Applicant asked the second victim (PW2) to be his girlfriend and to open an account to receive inward remittances, purportedly to avoid high bank charges.  He also asked PW2 to make initial deposits into the new account.  PW2 deposited HK$50,000 and HK$15,000 of her own money.  PW2 heard the Applicant ring someone to deposit HK$5,000 into the account.

8.The Applicant arranged for the deposit of 2 cheques of HK$5,000 and HK$665,000 into the account.

9.The Applicant then said his friend wanted the $5,000 back, and asked PW2 to give him her ATM card and PIN number.

10.Subsequently, the 2 cheques bounced, and HK$10,000 cash were withdrawn from PW2’s account, and HK$50,000 were transferred to Jockey Club’s account for the purchase of a cash voucher.

11.PW1 lost HK$150,000 and PW2 lost HK$60,000.  None was returned.

The Sentence

12.The sentencing judge took into account the Applicant’s numerous convictions involving dishonesty, the amount involved and none of it was repaid, and that Charges 2 and 3 were committed while on bail in DCCC 1036/2004.  For mitigation, she took into account the usual 1/3 discount for plea, some delay in prosecution and special circumstances on the papers, and ordered a 40% discount.

13.For Charge 1, the trial judge adopted a starting point of 4 years imprisonment, reduced by slightly less than 40% to 2 years and 5 months.

14.For Charges 2 and 3, she adopted a starting point of 2½ years each, reduced by 40% to 18 months each, to be served concurrently.

15.The sentencing judge took into account totality of the 3 charges, and ordered 12 months of Charges 2 and 3 to be served concurrently with Charge 1, making a total of 2 years and 11 months.

16.At the time of the sentence, the Applicant was serving a sentence of 5 years in DCCC 1036/2004 for 5 charges of fraud and 4 charges of theft.  The victims were also female masseuses and the modus operandi was similar.  The sentencing judge took into account totality of the 2 cases, and ordered 11 months of the present sentence to be served concurrently with the term in DCCC 1036/2004, making a total of 7 years imprisonment.

Grounds of Appeal

17.The Perfected Grounds of Appeal are:

(1)     The learned judge failed to sufficiently take into account the principle of totality in ordering that 24 months of the Applicant’s sentence be served consecutively with sentences in DCCC 1036/2004;

(2)     In all the circumstances, the sentence was manifestly excessive.

Discussion

18.Mr Pang, for the Applicant, accepted that the Applicant committed 3 further offences and should be subject to further punishment.  However, for offences of similar nature committed at different times, the correct approach was to regard the 2 cases as having been heard together and to look on that basis at the totality of the sentence (see R v Tong Hoi-fung [1988] 1 HKLR 610 (CA)).

19.Mr Pang submitted that the Deputy Judge ought to have identified the starting point not merely to the offences she was sentencing, but also to those cases in which she was approaching the question of sentence as if the current offences and the previous offences had been heard together (see R v Tsang Chiu-man [1996] 3 HKC 94).   As such, a cumulative sentence of 7 years upon plea for the 12 offences meant a starting point of 11 years and 8 months, which was said to be manifestly excessive.

20.Mr Pang pointed out in R v Tsang Chiu-man, the Applicant was involved in 9 taxi robberies while weapon was used, and the overall starting point was 10 years imprisonment.  Without trivializing the present offence, it was said thatthe overall starting point of 11 years and 8 months is manifestly excessive when compared with the facts in Tsang Chiu-man.

21.Miss Sin, for the respondent, referred to the Reasons for Sentence where the sentencing judge indicated that she had “borne in mind the totality principle of sentence, bearing in mind that the [Applicant] is currently serving a term of 5 years’ imprisonment for similar offences” and submitted that the sentencing judge had already given proper and full consideration to the totality principle.

22.There is no tariff for the offences and each case depends on the circumstances of the case and the offender.  There are aggravating circumstances in the 2 cases which the Applicant faced:

(1)     8 victims were involved with multiple offences involving $1.7 million in total;

(2)     All the victim were female masseuses defrauded of their hard-earned savings within a very short time;

(3)     No restitution was made;

(4)     Commission of offences while the Applicant was on bail;

(5)     Serious record of dishonesty offences and the Applicant could properly be regarded as a professional fraudster.

23.I consider the offences very serious especially where the victims were in  vulnerable positions and were defrauded of their hard-earned savings.  I am of the view that the overall sentence of 7 years imprisonment is justified.

24.Mr Pang submitted that at the time of sentencing in DCCC 1036/2004, the Applicant had requested all the charges to be dealt with together.  Mr Pang submitted that had all the 12 charges been placed before the first judge, the Applicant would have received a meaningful discount from the jurisdictional limit of 7 years of the District Court upon plea, notwithstanding a notional starting point in excess (see HKSAR v Lau Tai Heung CACC 54/1999 (22 July 1999)).

25.In fact, the Applicant had only disclosed before the transferring magistrate all the offences eventually included in DCCC 1036/2004.  The present offences only came to light after the Applicant had been sentenced in DCCC 1036/2004.  Had all the 12 offences been disclosed, the case might have been transferred to the High Court rather than the District Court.

Conclusion

26.In the premises, the application for leave to appeal against sentence is dismissed.

Hon Tang V-P:

27.I would like to add that Mr Pang had said everything that could be said on behalf of the Applicant, but for the reasons given by Fung J, I also would refuse leave to appeal.

Ms Mary Sin, SADPP of the Department of Justice, for the Respondent

Mr Robert Y H Pang, instructed by Messrs Lo, Wong & Tsui (D.L.A.), for the Applicant