HKSAR v. Gerald Martin Sordelet and Another

CACC000643/1996

IN THE COURT OF APPEAL

1996, No. 643
(Criminal)

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Coram: Hon Nazareth, V.-P., Liu and Mayo, JJ.A. in Court

Date of hearing: 18 July 1997

Date of judgment: 18 July 1997

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicants both pleaded guilty to attempting to obtain property be deception contrary to s17(1) of the Theft Ordinance. According to the particulars of offence, the amount which they attempted to obtain was US$1 million.

2. They were both sentenced to 3 years' imprisonment and now seek leave to appeal against these sentences.

3. It is evident from both the agreed facts and the Reasons for Sentence given by HH Judge Longley that this was a relatively sophisticated scheme.

4. The applicants together with others set themselves up in a luxury hotel. Neither applicant is a resident of Hong Kong and the judge perhaps reluctantly was prepared to accept that these men had not specifically come to Hong Kong to set up this scam. Be that as it may, what is clear is that the scheme was that once the moneys had been obtained from a victim the men would decamp and leave the jurisdiction.

5. The scheme was that a claim was made that by use of a chemical treatment a US$100 bill could replicate itself several times. The victim in this case who was in fact an undercover police officer gave details of the proposals which were put to him.

" On entering Room 1137 they were met by another male, D2. D3 told D2 to demonstrate the process. D2 took from a black 'Golden Duck' briefcase, a Hyatt Regency envelope containing 4 pieces of white paper. D2 explained that the pieces of paper were genuine whitened US$100 banknotes. He passed an ultra violet light over the notes and Spencer the Police Officer could see the fluorescent watermark, serial number and President's head.

D2 then took a dish from the bathroom and placed one piece of paper into the dish. He then placed a genuine US$100 banknote on top of the white paper and placed a second piece of white paper on top of the genuine banknote. D2 then removed 3 small bottles wrapped in white material from the briefcase. He took a syringe full of liquid, which he claimed to be mercury, from 1 bottle and emptied the contents over the 3 pieces of paper. The paper turned black. The parcel of notes was then wrapped in tinfoil and Wilson was asked to stand on them. The process was repeated with the other 2 pieces of white paper and another genuine banknote, and Spencer was asked to stand on the resulting parcel.

D2 then fetched a waste paper bin containing tap water. He poured liquid from another bottle into this. The tin foil packet Wilson had been standing on was then unwrapped and the 3 notes put into the waste paper bin. Having dipped them into the bin, the notes were retrieved and placed on the original dish. The syringe was again used to draw liquid from the third bottle and the notes covered with this solution. The banknotes took on the appearance of 3 US$100 banknotes. The process was repeated with the parcel Spencer had been standing on, and a further 3 notes appeared. One set contained old series notes, the other new series banknotes. The notes were dried with a hair dryer and handed to Spencer for examination. Three were retained to test by exchanging them at a bank or money changer. D2 packed up the chemicals proclaiming the job finished. The process was described in the following manner. The chemicals used were capable of drawing ink from the genuine note to re-colour the whitened genuine notes. Up to 4 pieces of Whitened notes could be done in each parcel before the original note would loose too much ink to be usuable.

D3 took over the conversation explaining that they were looking for investors to provide the genuine US$100 notes for the process. One million US, if invested, could produce up to four million extra notes. After the processing was completed the one million would be returned together with 40% of the processed notes. D3 and his friends would retain 60% of the processed notes. D3 asked Spencer to return the following day to speak to his boss about the level of his investment."

6. Judge Longley adopted 4 1/2 years as an appropriate starting point and gave both applicants the usual 1/3 discount for their guilty pleas.

7. Mr King for A1 focussed on the relative lack of culpability on the part of his client and the fact that the judge would have appeared to have passed a deterrent sentence. He contended that the starting point was too high. In addition to this he prayed in aid the claim that there had been an element of entrapment. In this connection the evidence of entrapment was tenuous in the extreme. The agreed facts were insufficient to support this contention.

8. In particular Mr King emphasised the fact that this offence was still at its initial stage and that on the agreed facts it was not possible that it could have been consummated. It is clear however that the judge was mindful of this fact.

9. The main grounds of appeal against sentence advanced by Mr Mullick for A2 relate to the fact that the scheme was nipped in the bud at an early stage. This is hardly a compelling ground as it would seem rather unlikely that A2 would have desisted from taking matters to their ultimate conclusion had he been able to do so. This would however have been a factor which would have been weighed by the judge. Other than this a submission is made that the starting point adopted by the judge was excessively high.

10. In this connection he submitted that the judge had attached undue weight to the amount of money stated in the charge. What was clear from the facts of the case was that the amount referred to was subject to negotiation. The submission does not appear to be borne out if the Reasons for Sentence are read as a whole.

11. Mr Mullick did refer us to other cases of a similar nature and submitted that the starting points and sentences imposed in those cases had not been as severe as the those in this case. We do not think that a great deal of assistance can be derived from other cases. As rightly stated by the judge the circumstances of each case vary infinitely. None of the cases referred to were tariff cases.

12. Another matter which was referred to by Mr Mullick was that A2 had been detained in custody in connection with another alleged offence which was not proceeded with. Mr Mullick suggested that some credit should have been given for this. We do not think that this is a factor which should properly have been weighed by the judge.

13. It is necessary to have regard to the overall seriousness of this case. Hong Kong is an international commercial centre and a serious view has to be taken of this type of fraud. It is right to pass sentences which will deter people from committing offences of this nature.

14. We are not persuaded that the sentences, although they are at the higher end of the appropriate range, are either manifestly excessive or wrong in principle. Accordingly the applications are refused.

Representation:

Mr I.G. Cross SC and Lily Wong (DPP) for Respondent

Mr Alexander King (DLA) for 1^st Applicant

Mr John Mullick (M/S Haldanes) for 2^nd Applicant