HKSAR v. Au Koon Yip

CACC 271/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 271 OF 2007

(ON APPEAL FROM DCCC NO. 23 of 2007)

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BETWEEN

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Before:   Hon Stuart-Moore VP and Beeson J

Date of Hearing: 25 July 2008

Date of Judgment: 25 July 2008

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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):

1.On 28 June 2007, the applicant was convicted after a trial before District Judge Browne on a charge of conspiracy to defraud, contrary to Common Law and section 159C(6) of the Crimes Ordinance, Cap. 200.  The clumsily worded particulars alleged that he and Tsang Chiu-wong (D2) conspired together and with others unknown between 29 June 2005 and 12 July 2005:

“… to defraud WAT LI Xue-fang to invest in trading in wrist-chains, by dishonestly and falsely representing that:

(1)     ‘Tai Fung Hong’ was a company dealing in handbags business;

(2)     Au Koon-yip, Tsang Chiu-wong and a male ‘Peter’ were employed by the said ‘Tai Fung Hong’;

(3)     Au Koon-yip, Tsang Chiu-wong and the said ‘Peter’ were participating in trading in wrist-chains; and

(4)     the trading in wrist-chains was genuine and profitable.” (Appeal bundle pp. 1-2)

2.D1 was sentenced on 1 August 2007 to 4 years’ imprisonment against which he now seeks leave to appeal.

3.Poorly worded though the particulars of the charge were, the meaning was clear enough.

4.This case is reminiscent of scams which were more common a few years ago.  Premises were rented to provide a business-like setting for a bogus company, ‘Tai Fung Hong’.  A recruitment advertisement was then placed in the Oriental Daily offering employment for an office worker.  Wat Li Xue-fang (the victim) was one of many who appear to have responded if the 79 completed application forms later found by the police at the company premises are an accurate guide.

5.The victim was offered a job involving cleaning work and taking samples of the product supposedly being traded by the company to places where they were required.  The company purportedly dealt in handbags but the victim was later led to believe that the applicant made a good living by ‘moonlighting’ in a trade involving silver wrist-chains.  The victim accepted the employment she was offered at a monthly salary of $5,000, having first filled out an application form providing her personal details.

6.The victim began her employment in June 2005 but she found herself having little to do.  The applicant had described himself as a salesman and the victim was told that he had worked for the company for four or five years.  He called himself ‘Joe’.  In early July 2005, the victim heard mention of trading in silver chains when she was given $14,400 to hand to someone called ‘Kelvin’ who would be coming with three chains.  ‘Kelvin’ duly brought the chains which the applicant, and another person at the office calling himself ‘Peter’, later purported had been sold at a profit of $600.

7.The victim was offered, but never given, $100 tea money from the proceeds.  Similar activities of the kind we have just described continued and the victim spoke to her husband about it.  His suspicions were such that he confiscated the victim’s bank cards and passbook.

8.Undeterred, the victim returned to the company’s office next day and heard yet more talk between the applicant and ‘Peter’.  This time she learnt that $15,000 had been made on a single transaction.  On about 6 July 2005, the victim gave in to temptation and agreed to make an ‘investment’ having previously refused to do so.  She quickly earned a $600 reward.  This led her to hand over a further $9,000 on 9 July 2005 in cash and, on 11 July 2005, after D2 had added weight to the confidence trick, she deposited $6,700 into a Hang Seng bank account the details of which had been supplied to her by ‘Peter’.  Some of the money was borrowed by the victim from her daughter and some from her sworn mother.  The money put into the bank was withdrawn within an hour.

9.Next day, on 12 July 2005, the victim was unable to contact ‘Peter’, and she immediately went to the office where she found the police in attendance. The police, for their part, found no business registration certificate, no business records, no telephones and, whilst there were two computers, these contained only programme files.  The 79 job applications, all similar to the one filled in by the victim and all from women, were dated between April and June 2005.

10.In mitigation, it was suggested that the scheme was not as sophisticated as many others which have come to the notice of the courts.  Added to this, there was only one victim who had lost a relatively small sum of money.  In relation to this point, it must be said that to the victim this was, as the conspirators well knew, a substantial sum.

11.In passing sentence, the judge noted that the applicant had a clear record and, from the probation officer’s report, the judge rightly remarked that the applicant was, at the age of 30, a “highly educated person” who had a City University degree in Applied Physics and had been a stockbroker for two companies during 1999 and 2000.  The applicant had married just before his trial commenced.

12.The judge made reference to the Court of Appeal’s judgment in HKSAR v Chiang Chun-wai v Anor CACC 11/2001 (unreported), a case similarly concerned with a bogus company, where it was stated that:

“8.     … 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 punishment for the offence but as a deterrent to others with a similar mind.”

13.It was submitted by Ms Panesar in these proceedings that the sentence of 4 years’ imprisonment was manifestly excessive.  She contended that the judge had failed to distinguish the facts in this case from those in more sophisticated frauds where a 4-year starting point was considered to be appropriate.  She argued also that the judge had erred in taking into account a potential for greater loss to the victim on the basis that not only had the conspirators tried to persuade her to invest more and were thwarted by her husband’s foresight in removing from her any further sources of money, but also (as expressed in the perfected grounds of appeal) by taking into account that:

“(a)    the ‘police recovered 79 job applications bearing dates within three months prior to the raid’ because there was no evidence the said job applicants were or would be defrauded; and

(b)     ‘the conspiracy was at its early stages’ because there was no evidence suggesting the scam would have continued.”

14.There was a further ground in which it was contended that the applicant’s sentence revealed disparity with D2’s ultimate sentence.

15.We can take these grounds together.  There was no substance in them.  The judge was fully entitled to have looked at the facts of this case in their full context.  To have sentenced on the basis that the conspiracy was exclusively focused on one victim would have been unrealistic.  Having said this, the judge was well aware that he was passing sentence in a one-victim crime having regard to the way matters had turned out.  Equally, it was obvious that if the police had not stepped in when they did, the scam would have continued as long as people were answering the advertisement for a job.  In such circumstances, it is our view that a 4-year starting point was not outside the proper range for such a scam.

16.D2 was in a different position.  He was already a convicted fraudster by the time he came to be sentenced and the sentencing remarks of the judge were self-explanatory.  The judge said:

“45.   As regards the 2nd defendant, his participation in the scam was not as great as that of the 1st defendant or Peter. However, his position is aggravated, as I mentioned above, because at the time of the offence he was on bail, awaiting sentence by the court for his role in a very similar conspiracy. In respect of that offence, he was sentenced to 38 months’ imprisonment. The starting point, presumably, was one of 4 years and 9 months’ imprisonment.

46.     I have to take into account the issue of totality. In my view, had both offences been before the same judge, a starting point of 7 years would have been appropriate for both offences with a one-third discount for the guilty pleas. That would have reduced the sentence to 4 years and 8 months’ imprisonment. I therefore sentence D2 to a sentence of 2 years and 8 months’ imprisonment and order that 18 months of that sentence should run consecutive to his current sentence.” 

17.In our opinion, the judge had achieved an appropriate totality for D2 although we consider he was somewhat fortunate that a longer term was not imposed by reason of the present offence having been committed in flagrant breach of bail.  The applicant, by contrast, has shown no remorse at any stage despite very strong evidence against him.  If he had pleaded guilty, and thereby earned the discount to which he would then have been entitled, his sentence would have been considerably less.

18.The application is dismissed.

Mr John Reading SC, DDP (Ag.) and Ms Mickey Fung, SPP (Ag.), of the Department of Justice, for the Respondent.

Ms M Panesar, instructed by Messrs Francis Kong & Co., for the .