HKSAR v. Tan Meiyuan and Others
Read the full judgment text of CACC 360/2008 on BabelCite. This Court of Appeal judgment was delivered on 2 April 2009 before Stuart-Moore VP, Stock JA, Beeson J.
Criminal law – street deception – obtaining property by deception from elderly victims – conspiracy to obtain by deception – sentencing – guilty plea discount – enhancement under s.27 of the Organized and Serious Crimes Ordinance, Cap. 455 – methodology of applying enhancement to multiple offences – whether global enhancement of total sentence is appropriate – starting point of three years' imprisonment per offence – one-third discount for guilty plea – 50% enhancement for organized crime – consecutive and concurrent terms – totality – appeal against sentence. The three applicants came from the Mainland to Hong Kong specifically to commit street deception offences targeting elderly women by claiming access to supernatural powers; victims were induced to hand over cash and jewellery and given bags filled with rubbish in return. Three offences were committed in June and July 2008, and the applicants pleaded guilty in the District Court. The single ground of appeal challenged the sentencing judge's methodology of applying a 50% enhancement under s.27 OSCO to the global total sentence after ordering consecutive terms. The Court of Appeal held that the global enhancement approach was inappropriate; the total sentence must be discernible from the face of the order by identifying the exact sentence for each offence and the concurrent/consecutive structure, and a global sentence covering more than one offence is not otherwise appropriate. The court distinguished HKSAR v Tam Wai-pio [1998] 4 HKC 291 and followed the approach set out in its own judgment. Leave to appeal was granted to all three applicants (D3 out of time). The court did not interfere with the three-year starting point per offence, applied the standard one-third discount for guilty pleas to yield two years per offence, then applied the 50% enhancement to each individual term to yield three years per offence, and adjusted the consecutive portions to nine months each. The result was the same overall total as imposed by the sentencing judge but arrived at through a proper methodology: D1 and D2 sentenced to 4 years 6 months' imprisonment; D3 sentenced to 45 months' imprisonment.
Legal issues: Appropriateness of global sentence enhancement methodology under s.27 OSCO
Outcome: Leave to appeal against sentence granted to all three applicants (D3 out of time); sentences substituted by the Court of Appeal, resulting in the same overall totals as imposed by the sentencing judge but arrived at through a different methodology.
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cacC 360/2008 in the high court of the hong kong special administrative region court of appeal cRIMINAL appeal no. 360 of 2008 (on appeal from dccc NO. 810 of 2008) ________________________ BETWEEN
________________________ Before: Hon Stuart-Moore VP, Stock JA and Beeson J in Court Date of Hearing: 2 April 2009 Date of Judgment: 2 April 2009 ________________________ J U D G M E N T ________________________ Hon Stock JA (giving the judgment of the Court): Introduction 1.This is a street deception case of the type with which the courts have become all too familiar. The offenders prey on elderly women. It is a feature of this case, as with many others in this category, that each of the offenders came from the Mainland to Hong Kong specifically to commit these crimes. In this case, there were three offences committed in June and July 2008; and in October 2008 the offenders were sentenced in the District Court by Judge Stanley Chan to various terms of imprisonment and it is in respect of those sentences that these applicants now seek leave to appeal. One of the applications is for leave to appeal out of time. 2.What the applicants did was to lure elderly women to part with money and jewellery by claiming that they had access to persons with supernatural powers and that, if the services of that person were not used, evil would befall a member or members of the victim’s family. The women were then persuaded to part with sums of money and with jewellery which, in terms of their own savings or assets, were very substantial indeed. They were then given back a bag which was said to contain the money and items that they had handed over but told not to open the bag for some days; but when they did open the bag they found it filled with rubbish. Sentences hitherto 3.It is a sad fact that there are those who fall for these stories, and that there are those who prey on such gullibility and superstition. The crime is a wicked one and calculatedly so. It is accompanied by forecasts of doom for the victim’s family and sometimes victims lose their life’s savings. 4.At the time these particular offences were committed the standard starting point for such offences after trial was three years’ imprisonment which, in the light of the nature of the offence and the effect on the victims, might well be thought to be low, bearing in mind also the aggravating feature that those thus sentenced came to Hong Kong specifically to commit the offence. This low starting point seems from the cases we have studied to have caused sentencing judges some unease as reflected by the number of times they have adopted higher starting points only to be reduced on appeal. We note that in a recent judgment HKSAR v Onyang Guilan & 2 others Cr App No. 251 of 2008, 16 February 2009 (unreported) at para 20 the Court of Appeal suggested a range of 3 to 3½ years as a starting point for a single offence where a gang was involved. The court went on to suggest that, dependent on the gravity of the offence, 6 months of the term for subsequent offences might be made consecutive. That option is of course open in particular cases, though the consecutive term is often in practice, and sometimes correctly, longer. If these offences remain prevalent, this Court will no doubt revisit the starting point for sentencing. The present offences 5.We are in this application for leave concerned with three charges, which were the second, third and fourth on the indictment. D1 and D2 were charged with all three and pleaded guilty. D3 was charged with the second and fourth and pleaded guilty. 6.The first offence (Charge 2) took place on 13 June 2008. The applicants induced a 66-year-old woman to part with $154,000 in cash as well as with jewellery to the value of $26,100. What was returned to her was a bag of sugar, two bottles of water and some newspaper. 7.The second offence (Charge 3) took place on 7 July 2008. The victim was aged 72 years and she was deprived of $13,000 in cash and several thousand dollars worth of jewellery. She was told that but for the use of a doctor, supposedly possessed of supernatural powers, her son would soon have an accident and her husband would become sick. When she discovered that she had been duped – and one can only imagine with what shame and horror she greeted that discovery – she was so afraid of being scolded by her family that she did not disclose the matter for a few days. 8.The third offence (Charge 4) did not produce fruit for the applicants because the 84-year-old lady had no money, even though she had been told that if she did not find cash and jewellery for the promised spiritual ritual, her family would be damned. The charge, therefore, was one of conspiracy to obtain by deception. The sentences imposed 9.None of the applicants had any previous conviction in Hong Kong. 10.The judge noted that there were a number of aggravating features; in particular that all three applicants came to Hong Kong in order to commit the crime. That said, it is noticeable that he did not seem to have given specific effect to that aggravating factor, noting perhaps the standard term hitherto given despite that feature. 11.What the judge did in relation to each offence was to take a starting point of three years’ imprisonment and reduce it, by reason of the plea of guilty, to a term of two years’ imprisonment. In relation to D1 and D2 he ordered 6 months of the term on Charge 3 to run consecutively to the two years imposed on Charge 2, and 6 months in relation to Charge 4 to run consecutively to those terms making a total of 3 years’ imprisonment. Purportedly pursuant to the provisions of s.27 of the Organized and Serious Crimes Ordinance, Cap. 455, he decided to enhance that total sentence by 50% and ended by saying that “accordingly, I sentence D1 and D2 to 4½ years… .” 12.In relation to D3, he took a starting point of three years’ imprisonment for the offences reflected by Charges 2 and 4; reduced each by reason of the plea of guilty to a term of two years’ imprisonment; ordered that six months on Charge 4 run consecutively to the two-year term on Charge 2 making a total of 30 months’ imprisonment and enhanced that total by 50% and ended by saying that he accordingly sentenced D3 to a total of 45 months’ imprisonment. The method of enhancement 13.The single ground of appeal is that the judge’s enhancement methodology was inappropriate and with that we respectfully agree. 14.The matter can at once be tested by asking to which individual offences the terms of 4½ years and 45 months respectively are to be attributed. The judge clearly did not intend in the case of, say, D1 and D2 to impose a concurrent term of 4½ years in respect of each offence. 15.It is always important that at the end of a sentencing process for more than one offence, the total sentence can be discerned by ascertaining two factors which are apparent on the face of the order made: first, the exact sentence imposed in relation to each offence, which must be a sentence appropriate to the circumstances of that offence and, second, the totality to be derived from an expression of what part of the sentences for the second and further offences are concurrent and what parts, if any, are consecutive. It is not otherwise appropriate to impose a global sentence covering more than one offence. The inappropriateness of the course adopted can further be tested by noting the difficulty that would arise were the conviction upon one or more of the individual offences to be set aside. It may be that the judge adopted the approach he did by an analysis of HKSAR v Tam Wai-pio [1998] 4 HKC 291 at 298. That judgment did not intend the approach adopted by this judge and if that judgment has been taken otherwise, it is the approach in this judgment that should be followed. Result 16.In the event, and for the reasons given, we grant each applicant leave to appeal against sentence (in the case of D3 out of time). In the light of the standard sentence that seems to have prevailed at the time of these offences and at the time of sentence in the District Court, we shall not interfere with the starting point taken by the judge in relation to each offence, namely three years’ imprisonment. After the standard one-third discount for the pleas of guilty, the resulting sentence would, but for the enhancement factor, be two years’ imprisonment but given the 50% enhancement factor, we substitute for the term of two years’ imprisonment imposed on each defendant in respect of each offence to which she pleaded guilty, a term of three years’ imprisonment. 17.This leaves the question of totality. We consider that the totality reached by the judge was appropriate. We order in relation to D1 and D2 that 9 months of the term imposed on Charge 3 shall run consecutively to the term of three years imposed on Charge 2; and 9 months in respect of the term imposed on Charge 4 shall run consecutively to the terms imposed on Charges 2 and 3, the remainder of those terms to run concurrently; making a total of 4 years 6 months’ imprisonment. In relation to D3, we order that 9 months of the term imposed on Charge 4 shall run consecutively to the term of three years imposed in relation to Charge 2, the remainder to run concurrently, making a total of 45 months’ imprisonment. 18.The result is the same as that reached by the judge but the route is different.
Mr Kevin Chan instructed by the Director of Legal Aid for D1, D2 and D3 Ms Mary Sin, SADPP, of the Department of Justice for the Respondent |
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