HKSAR v. Yuen Sau Han, Diana

CACC 62/2006 and CACC 356/2006

CACC 62/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 62 OF 2006

(ON APPEAL FROM DCCC NOS. 727 & 728 OF 2005)

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BETWEEN

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and

CACC 356/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 356 OF 2006

(ON APPEAL FROM DCCC NO. 112 OF 2006)

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BETWEEN

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Before: Hon Stuart-Moore VP and Beeson J

Dates of Hearing: 8 April 2008 and 27 March 2009

Date of Judgment: 27 March 2009

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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.These proceedings are concerned with two applications (CACC 62/2006 and CACC 356/2006) for leave to appeal against a sentence of 6 years’ imprisonment in totality.  They have a relatively lengthy history to them but in effect the essential basis of each application was that there should be a reduction in sentence as the result of the appellant’s positive cooperation in providing evidence against nine other offenders in another trial after sentence had been imposed in her own case.

2.Having regard to the merits, we can indicate that leave is granted in both cases and that we shall treat this hearing as the hearing of the appeals.

3.We can deal quite briefly with the background as much of it has little relevance to the present proceedings.

CACC 62/2006 (on appeal from DCCC 727 and 728/2005)

4.The appellant (D3 in the court below) was sentenced in DCCC 727 and 728/2005 to a total of 3 years’ imprisonment following her pleas of guilty before Deputy District Judge J. Chan to two charges of conspiracy to defraud.  As a result of these offences, $7.2 million was lost by Hang Seng Bank on the 1^st charge and $475,287 was lost by Inchroy Credit Corporation Limited on the 2^nd charge. On 23 January 2006, the judge adopted a 5-year starting point on the 1^st charge, recognizing that she had played a subsidiary role to D1 for whom a 6-year starting point was taken.  However, the judge reduced the appellant’s sentence by a further 4 months for what he termed “positive good character”.  There was, with respect, no such evidence as it is plain from the probation report that the most that could be said about her was that she had been in honest employment for a time and had no previous convictions.  There was no basis for the further reduction of sentence.  In the event, the appellant was sentenced to concurrent prison terms of 3 years and 18 months’ imprisonment (from a 30-month starting point) on these charges, respectively.

CACC 356/2006 (on appeal from DCCC 112/2006)

5.In the second of these appeals, CACC 356/2006, the appellant pleaded guilty on 1 August 2006 to a charge of conspiracy to defraud.  Deputy District Judge D. I. Thomas took a 6-year starting point for the offence and sentenced the appellant to 4 years’ imprisonment having regard to her plea.  3 years of this sentence was ordered to run consecutively to her existing 3-year sentence and significantly, in this regard, this offence was committed between January and July 2005 at a time when the appellant was on bail for the earlier offences.

Basis of the appeals

6.We do not need to deal with the factual basis for sentencing as no complaint is made in this regard except, as we have indicated, that a reduction is now sought arising from subsequent events.  These began to surface when CACC 62/2006 was listed for hearing on 14 July 2006 and it was made known that the appellant was assisting the police in the investigation of other similar offences carried out by others.  A further complication was that, by this stage, the appellant was facing further proceedings in the District Court which are now before this court as CACC 356/2006.

7.Eventually, these appeals were consolidated and they were listed before this court on 7 September 2007.  They were then adjourned as the appellant was continuing to provide assistance in other cases.

8.On 25 February 2008, it was made known before the single judge that the appellant was due to give evidence against others in a trial (originally estimated as being of 30 days’ duration) in the District Court commencing on 16 June 2008.  The single judge of this court was then persuaded to agree to a submission that the hearing date for these consolidated appeals in April 2008 should not be disturbed having regard to the possibility that, if this was altered, the appellant’s earliest release date might also be affected.  However, the result of that decision would have left the appellant being dealt with prior to the District Court trial in which she was due to testify and unable, therefore, to claim any credit for giving truthful evidence.  Having regard to the wider interests of justice, we were unable to agree with the single judge’s conclusion in this regard despite the fact that the appellant had expressed her full understanding of the situation and had nevertheless wished to have her appeal heard in April 2008.

9.The appellant, we were informed, has now been in custody since 31 October 2005.  It suffices to say that she has assisted the authorities in a way which amply justifies a reduction in sentence by 50% having provided seven non-prejudicial statements in regard to twenty-six charges preferred against nine defendants.  We are told that she then testified for some 24 days against those defendants as one of the two immunised witnesses called by the prosecution.  Some of the defendants pleaded guilty while the others who pleaded not guilty were found guilty.  Sentences in that case of between 14 months and 54 months were imposed on charges arising from a conspiracy to defraud.

10.It is not suggested that the prosecution would have been unable to prove these charges without the appellant’s assistance.  However, her cooperation greatly assisted the progress of the enquiry and ultimately her evidence lent substantial weight to the prosecution’s case.

Conclusion

11.The appeals are allowed in both cases.  However, we shall approach the sentencing afresh in CACC 62/2006 in order to avoid the same error of principle made by the judge when increasing the appellant’s discount for “positive good character” when there was no such evidence.  The 5-year starting point is reduced by 50% to 30 months’ imprisonment on the 1^st charge and the 30-month starting point on the 2^nd charge is reduced to 15 months.  These sentences are to be served concurrently.

12.In CACC 356/2006, adopting the 6-year starting point taken by the judge, a reduction of 50% leads to a term of 3 years’ imprisonment of which 75% is to be served consecutively (as ordered by the sentencing judge in that case).  It follows, that 27 months’ imprisonment is to be served consecutively.

13.In the result, therefore the appellant’s total term of imprisonment is reduced to 57 months’ imprisonment.  For the avoidance of doubt, we intend that this substituted overall sentence should ensure that the appellant is released immediately as we have been informed that, with good behaviour, the appellant would, on this basis, now be due for release.

CACC 62/2006

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

The Appellant, in person.

CACC 356/2006

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

Mr Albert Luk, instructed by Messrs Edmund Cheung & Co., assigned by Director of Legal Aid, for the Appellant.