HKSAR v. Fan Shek Hung
Read the full judgment text of CACC 393/2006 on BabelCite. This Court of Appeal judgment was delivered on 8 May 2008.
1. The Applicant was charged with one count of “dealing with property representing proceeds of an indictable offence”, contrary to section 25(1) of the Organized and Serious Crimes Ordinance (Cap. 455 of the Laws of Hong Kong). He pleaded not guilty to the charge. After trial before Deputy District Judge Sham, the Applicant was convicted and sentenced to 6½ years’ imprisonment. He applied for leave to appeal against sentence. After the hearing, we allowed the application, treated the applica
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[English Translation – 英譯本] IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 393 OF 2006 (ON APPEAL FROM DCCC NO. 276 OF 2006) _________________
_________________ Coram: Hon Cheung and Yeung JJA in Court Date of Hearing: 8 May 2008 Date of Judgment: 8 May 2008 Date of Reasons for Judgment: 26 May 2008 REASONS FOR JUDGMENT
Hon Cheung JA (giving the reasons for judgment of the Court): 1.The Applicant was charged with one count of “dealing with property representing proceeds of an indictable offence”, contrary to section 25(1) of the Organized and Serious Crimes Ordinance (Cap. 455 of the Laws of Hong Kong). He pleaded not guilty to the charge. After trial before Deputy District Judge Sham, the Applicant was convicted and sentenced to 6½ years’ imprisonment. He applied for leave to appeal against sentence. After the hearing, we allowed the application, treated the application as the appeal proper, and reduced the term of sentence to 5 years and 8 months. The reasons for our judgment are set out below. Prosecution case 2.The facts of the case revealed that in February 1996 a purchaser from a subsidiary of Chuang’s Consortium International Limited (‘the Purchaser’) purchased a property situated at Ground Floor, 15 Robinson Road (‘the Property’) for HK$105,000,000.00. The Purchaser and vendors to that property transaction were represented by different solicitors’ firms. 3.On 23 February 1996, the Purchaser and two persons claiming to be the owners of the Property signed a provisional sale and purchase agreement in respect of the Property. On the same day, the Purchaser sent a bank draft in the sum of HK$15,825,000.00 to the solicitors’ firm acting for the owners in payment of the first deposit as required for the purchase. The owners instructed the firm to draw a cheque in the same amount in favour of a person named ‘So Chi Yin’. Upon receipt of the cheque, So Chi Yin presented it in a bank and withdrew the cash. 4.On 22 March 1996, the Purchaser and the vendors signed a formal sale and purchase agreement. The Purchaser delivered a bank draft in the sum of $15,825,000.00 to the solicitors’ firm acting for the owners in payment of the second deposit as required for the purchase. The owners instructed the firm to transfer the above sum to the Applicant by way of a cash cheque in his favour. 5.On 22 March 1996 the Applicant and another male cashed the cheque in a bank. 6.The property transaction was in fact a sham. The real owners of the Property had neither consented to sell the Property nor signed any document to convey the Property. In the transaction, the Purchaser was defrauded of HK$31,650,000.00 being the total sum of the two deposits. 7.The Applicant left Hong Kong via Lowu on 25 March 1996, and thereafter the Immigration Department did not have any record of the Applicant entering or leaving Hong Kong. Ever since he left Hong Kong, the Applicant had resided on the Mainland. He smuggled himself back into Hong Kong in 2005 and was arrested by the police in March 2006. During his stay on the Mainland, the Applicant had smuggled himself into Hong Kong for four times. 8.So Chi Yin, who withdrew the first deposit, was arrested by the police and prosecuted for the same charge in 1996. The charge was stated to involve the sum of HK$15,825,000.00. After trial before District Judge Barnes (as she then was), So Chi Yin was convicted and sentenced to 4 years’ imprisonment. Judge Barnes adopted a starting point of 4 years. Despite So Chi Yin had pleaded not guilty, Judge Barnes took into account that he had not disputed all aspects of the prosecution case and hence reduced the term by 6 months. In the end, So Chi Yin was sentenced to a term of 3½ years. Dissimilar sentences imposed on co-defendants 9.The ground of appeal advanced by the Applicant is that he is being unfairly treated by reason of the great disparity between the sentences passed on him and So Chi Yin. 10.In HKSAR v. Leung Yiu Ming and another [2000] 1 HKLRD 247, this Court (Nazareth VP, Stuart Moore VP and Wong JA) discussed the issue of dissimilarity in sentences imposed on two co-defendants. As this Court observed, two scenarios are involved. The first is where there is a disparity between sentences passed on the same occasion by the same judge, in which case the sentence can be varied by the appellate court if the judge has not properly apportioned the culpability between the co-defendants. The second scenario is where different sentences are passed on the co-defendants by different judges on different occasions, in which case, save in exceptional circumstances, the appellate court only has to consider whether the sentence imposed on the particular appellant is appropriate. 11.The present case falls into the second scenario discussed above. It follows that, unless the Applicant can show that there are exceptional circumstances, the only issue we have to consider is whether the sentence passed on him is appropriate or not. Sentencing principles 12.As far as the offence of “dealing with property representing proceeds of an indictable offence” is concerned, no sentencing guidelines have been laid down as the facts vary from case to case. Nevertheless, the following factors may be considered for sentencing purposes:
See R v. Karen Monfries [2004] 2 Cr App R (S) 3, 9. 13.While the sentencing court is entitled to take into account the sentence of the underlying indictable offence, this Court (Stuart-Moore VP and McMahon J) held in HKSAR v. Chen Szu Ming CACC 270/2005 that the court, in considering the sentence for “dealing with property representing proceeds of an indictable offence”, should only do so on the basis of that offence itself rather than of the underlying indictable offence. That said, the defendant’s knowledge of the underlying indictable offence will of course constitute an aggravating factor. Authorities 14.The following are several decided cases in which the amounts involved are similar to that in the present case:
The Applicant’s role 15.The Applicant’s ground of defence was that he was involved in the present case purely because he rendered assistance to a friend. That friend said he might obtain a sum of money from a relative and asked the Applicant whether he would assist him in opening a Chinese restaurant in case he did get the money. Subsequently, that friend told the Applicant he had been given the money and asked the Applicant to collect the cheque from a solicitors’ firm and cash it at the bank on his behalf. The Applicant did as told. He alleged that he had no knowledge whatsoever about the whole incident being a fraud, and that the cash he withdrew from the bank was taken away by another man involved in the same case. He had been unable to contact the said friend ever since then. He subsequently left Hong Kong because prior to the incident he had promised some other friends to help look after their business on the Mainland. 16.Deputy Judge Sham rejected the Applicant’s defence, holding that the Applicant not only had knowledge of the fraudulent scheme but also participated in it by withdrawing the cash from the bank in person. He clearly knew the money came from a sham. In his Reasons for Sentence, the Deputy Judge said:
Discussion 17.We accept that the underlying indictable offence in the present case concerns an orchestrated fraudulent scheme. Although professionals were involved in the whole transaction, they failed to notice anything deceitful and the Purchaser was defrauded of more than $30 million. In our judgment, the Applicant not only had knowledge of the scheme but also participated in it. He should therefore bear a higher level of culpability and receive a more severe sentence. 18.At the same time, we are not persuaded by the approach adopted by Deputy Judge Sham that in light of the prevalence of fraud cases in the society, a severe punishment should be imposed on the Applicant in order to achieve a deterrent effect. In determining whether a deterrent sentence is to be imposed for a particular type of offence, the court must first obtain information about the prevalence of that offence as a basis for sentencing, and also consider the usual sentences imposed for similar offences. In our view, a sentencing judge should follow the established sentencing principles and adopt a sentence appropriate to the type of offence in question. The judge should not enhance a sentence so that it departs from the usual sentence appropriate to the same type of offence, simply because of his own views on certain social issues. Such an approach is unfair to the defendant and, what is more, amounts to a disregard of sentencing principles. 19.Although Deputy Judge Sham said he would only sentence the Applicant on the basis of the $15,000,000.00 that he had dealt with, it appears from his Reasons for Sentence that of the sentence was in fact based on the facts of the fraud case. Although the Applicant had knowledge of the fraud and participated in the scheme, he was not charged with “fraud”. Judging from the Deputy Judge’s imposition of a term of as long as 6½ years, the only conclusion we can draw is that he had placed undue emphasis on the underlying indictable offence at the time of sentencing. Conclusion 20.Having taken into account the sentences imposed for similar offences and the Applicant’s culpability, we consider that the appropriate term of imprisonment should be 5 years and 8 months.
Ms. Winsome Chan, Senior Government Counsel, for the Respondent. Mr. Paul Wu, instructed by Kevin Ng & Co. on assignment by the Legal Aid Department, for the Applicant. Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor. |
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