Read the full judgment text of CACC 226/2009 on BabelCite. This Court of Appeal judgment was delivered on 11 August 2010 before Hartmann JA and Mackintosh J.
Criminal law – conspiracy to defraud – ghost workers – cleaning sub-contract for public housing estate – sentence of 12 months' imprisonment – application for leave to appeal against sentence – whether learned judge failed to distinguish between the roles of the Applicant and her mother (D2) – whether delay in prosecution entitled the Applicant to a reduction or suspension – whether personal and family circumstances warranted leniency – whether fresh psychiatric evidence of post-traumatic stress disorder justified suspension on humanitarian grounds – whether post-sentence full restitution of HK$423,257 justified reduction – sentencing range of 30 months to 3 years upheld as correct for a conspiracy to defraud of this nature, sophistication and value, involving a public body – Applicant was a director who, on learning of the dishonest activities, actively participated in the conspiracy by signing documentation and cashing ghost-worker cheques – the 12-month sentence was considered remarkably lenient, the Applicant having been extremely fortunate to fall outside the 30-month to 3-year range – delay from first ICAC interview in May 2006 to arrest in May 2008 was not exceptional given the scale and complexity of the investigation, and no acknowledgement of guilt or legitimate expectation of non-prosecution arose – Applicant's household was well resourced with domestic helpers, her younger sister lived nearby, and suitable family members were available to care for her two young children during the relatively short custodial period – post-traumatic stress disorder diagnosed in December 2009 arose only after the sentence as a result of detention, was not exceptional, could be treated in custody by the Correctional Services Department, and following Eddie So Chee Kong v The Attorney General did not justify varying the sentence – restitution of HK$423,257 made on 27 May 2010, after conviction, after sentencing, and after abandonment of the conviction appeal in December 2009, could not be regarded as a mark of true remorse and carried limited weight under SJ v Lin Ming Ying – following HKSAR v Yeung Kwai Kuen, the appellate court is not an administrative review tribunal taking account of post-sentence events – no exceptional circumstances existed to justify suspension of imprisonment – application for leave to appeal against sentence dismissed – (HKSAR v Cheung Suet Ting, CACC 226/2009, 11 August 2010, Hartmann JA and Mackintosh J).
Legal issues: Distinction between roles of co-conspirators in sentencing · Delay in prosecution as mitigation · Personal and family circumstances as mitigation · Post-sentence psychiatric evidence as mitigation · Post-sentence restitution as mitigation
Outcome: Application for leave to appeal against sentence dismissed; the 12-month sentence imposed by the District Court stands.
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