HKSAR v. Yung Chi Lok

CACC 8/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 8 OF 2010

(ON APPEAL FROM DCCC NO. 1276 OF 2009)

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BETWEEN

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Before: Hon Stock VP and Mackintosh J in Court

Date of Hearing: 3 August2010

Date of Judgment: 3 August 2010

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J U D G M E N T

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HonStockVP (giving the judgment of the Court):

Introduction

1.This is an application for leave to appeal against sentence.

2.On 23 December 2009, the applicant pleaded guilty before Deputy District Judge A Kwok to one charge of conspiracy to defraud. The case number was DCCC 1276 of 2009.

3.This is another case in which entirely innocent people were defrauded by a group of fraudsters who falsely represented to them that they were investing in genuine Loco London Silver trading.  Between September 2000 and February 2001, six persons were employed by a company called Rich Surplus, of which the applicant was a director, as office assistants and persuaded by him and others, posing as staff members, to invest in the Loco London Silver Market.  The applicant was identified by one of the victims as a person who had conducted her job interview and by another as the person who had acted as a supervisor.  The entire operation was bogus and the six complainants suffered substantial losses, between them over $1,150,000.

4.The courts have regularly commented upon the particularly cruel nature of calculated dishonesty of this type by which entirely blameless victims are fleeced of hard-earned savings.  The history of this applicant’s criminality in fraud of this kind illustrates an unusual degree of persistence in the pursuit of dishonesty.  Not only had he committed an offence of this nature before but during each such escapade he continued the fraud after a police raid and the particular course of criminal conduct with which the instance case is concerned was carried out not only either side of a police raid but also whilst awaiting trial for an earlier such fraud.

The history

5.The relevant history is as follows:

(1)            In September 1998 the applicant commenced, with others, a similar scheme defrauding persons who were induced to part with their money upon a false representation that he and others were conducting a genuine business in the name of a company called Champion Market, purportedly trading in silver and gold.  That case was numbered DCCC 1184 of 2000.

(2)            In November 1998 the police raided the premises and the applicant admitted that he was the person-in-charge.  He had overseen the operation, had managed various teams and actively engaged with individual victims to defraud them of monies.

(3)            That raid made no difference to him because with some of the others, he continued the fraud until April 1999.

(4)            In that case the applicant presided over losses exceeding $7 million.

(5)            He was placed on bail pending trial.

(6)            The conspiracy in this, the second case, case number DCCC 1276 of 2009, commenced in September 2000.

(7)            There were two police raids in relation to this case, namely, on 26 September and 23 November 2000.  The applicant and the co-conspirators were arrested and subsequently released on bail.

(8)            Those raids, once again, did not deter the applicant from continuing with his participation in the conspiracy.  It continued until February 2001.

(9)            In August 2001 the applicant absconded.

(10)            In October 2001 the applicant was convicted in his absence for the first conspiracy as well as for an offence of failing to comply with an order of the High Court made under s. 4(2) of the Organized and Serious Crimes Ordinance, Cap. 455. He was sentenced by the trial judge to a term of 6 years 10 months’ imprisonment for the conspiracy to defraud plus two months for the offence of failing to comply with the court order, a total of 7 years’ imprisonment.

(11)            In October 2008 the applicant surrendered to the authorities.

(12)            In February 2009 the Court of Appeal heard his application for leave to appeal against sentence in relation to the term of 7 years’imprisonment imposed in October 2001 for the first case (DCCC 1184/2000).  The court held that the sentencing court had erred in principle in enhancing the sentence on account of the suggested prevalence of the offence, pursuant to s. 27 of the Organized and Serious Crimes Ordinance.  Because of this error in principle the court was prepared to entertain the application so long after the event.  The Court substituted a term of 5 years 6 months’ imprisonment in relation to the conspiracy to defraud, increased the sentence in relation to the s. 4 offence to one of 10 months’ imprisonment, and ordered those sentences to run consecutively, making a total of 6 years and 4 months’ imprisonment.

(13)            In December 2009 the applicant was sentenced for the second conspiracy, the one committed between September 2000 and February 2001 (DCCC 1276/2009) which is the sentence with which this application is concerned.  For that conspiracy, he was sentenced to a term of 4 years and 4 months’ imprisonment.  The judge ordered that term to run wholly consecutively to the term of 6 years and 4 months’ imprisonment for DCCC 1184/2000, making a total for the two cases of 10 years 8 months.

The grounds

6.Mr Ng, on behalf ofthe applicant, argues that:

(1)            the sentencing judge adopted a starting point that was too high for the present case;

(2)            in ordering the sentence for the present case to run entirely consecutively to the sentence imposed in relation to the first case, DCCC 1184/2000, the judge has engaged in double-counting by twice takinginto account the fact that the second conspiracy to defraud was committed whilst on bail – once to aggravate the starting point for the second conspiracy and then to use it as the reason, or a main reason, for making the two sentences run wholly consecutively; and

(3)            the totality for the two cases was manifestly excessive: this is the aspect which Mr Ng, in his able and succinct submissions, has emphasised in oral submissions today.

The judge’s approach

7.The judge noted that at the time of sentencing, the applicant was aged 35 years and he noted the facts of this case and of the earlier case.  He then made reference to the sentence imposed in HKSAR v Dos Passos Anthony Joseph, CACC 517 of 2001, 27 September 2002, unreported, a case in which a defendant had been sentenced to 5 years’ imprisonment on similar facts but where the amount lost by the four victims was $470,000.  The judge took the view that “although the [applicant in the present case] was not the mastermind as conceded by the prosecution, his role was also important and crucial, and the money involved in the present case was more than double that of Dos Passos.  I therefore took the view that a starting point of 5½ years is appropriate in this case.”  He then added another 12 months to that starting point to reflect the aggravating factor that this offence was committed by the applicant whilst on bail.  That took him to a total of 6½ years’ imprisonment.  He then reduced that term by one-third to give credit for the plea of guilty and imposed a sentence in relation to this conspiracy of 52 months’ imprisonment.

8.He then noted, correctly in our view, that since this second conspiracy constituted an offence separate and unrelated to the first, it merited, as a matter of principle, a consecutive sentence.  He then considered the question of totality and ordered the sentence for the second conspiracy to run wholly consecutively to the sentences imposed in DCCC 1184/2000.

Analysis

9.There are three steps to a sentencing process of this kind: the imposition of the correct sentence for a particular offence; consideration whether the circumstances of two offences are such as to warrant, in principle, the imposition of consecutive sentences; and, third, if so, standing back and taking a global view, ascertaining the appropriate totality, to which appropriate totality effect is given by ordering the sentences to run concurrently, or wholly consecutively, or partly consecutively and partly concurrently.

10.There is in this case an allegation of double-counting, namely, a suggestion that the sentencing judge used the fact that the second conspiracy was committed whilst on bail not only to determine the correct sentence for the second conspiracy but also in aggravation of the totality.

11.We need therefore to see what it is that the judge actually said:

“25. I have already mentioned the authority which says that if it concerns a case where an offender commits the offence while on bail, the sentence should be consecutive. I went on to consider whether as a question of totality, I should order, as suggested by the solicitor for the defendant, that part of the sentence should run concurrently. After serious consideration of the suggestion or submission, I decided that the sentences of both sentences should run wholly consecutive to each other.” (emphasis added)

12.He thenreferred to an authority in which, he said, revealed that if an accused had committed two discreet offences on different dates “as a matter of sentencing principle, consecutive sentences are called for.” (emphasis added).  He concluded that he should pass a wholly consecutive sentence in this case.

13.It is by no means clear in this case that the judge has engaged in double-counting.  He said in the passage which we have cited that “where an offender commits the offence while on bail, the sentence should be consecutive,” having said which he then went on to consider the question of totality.  That suggests to us a correct approach, namely, first, principle and then, totality.  The real question in this case, it seems to us, is totality and we are of the view that the totality was clearly excessive.

14.The starting point of 6 years 6 months, includingthe aggravating features, before plea, is on the high side but not such as could be said to be manifestly excessive.  What is remarkable in this case is the applicant’s persistence. The aggravating features were particularly stark: the continuation of the offence after two police raids and the commission of the offence whilst on bail for the first conspiracy.  Whilst others might have imposed, after plea, a sentence a few months less for the second conspiracy, the sentence in fact imposed was within the range open to the sentencing judge.

15.The two sets of offences merited consecutive sentences in principle.  They were committed during quite separate periods and against different victims and the degree of the applicant’s contempt for all attempts by the authorities to put a stop to his criminality was extraordinary.  But, as we have said, a totality of 10 years and 8 months’imprisonment strikes us as excessive. We are of the view that an appropriate totality is one of 9 years 6 months’ imprisonment.

Conclusion

16.Accordingly, we grant the applicant leave to appeal against sentence, treat the hearing of the application as the appeal, allow the appeal, set aside the order made by the court below that the sentence of 4 years and 4 months’ imprisonment for the second conspiracy is to run wholly consecutively to the earlier sentences, and we substitute therefor an order that 3 years and 2 months of the sentence imposed in the present case (DCCC 1276 of 2009) shall run consecutively to the total of 6 years 4 months imposed in DCCC 1184 of 2000, the remainder to run concurrently, making a total of 9 years 6 months’ imprisonment for the two cases.

Mr Ng Man Sang Alan,instructedby Director ofLegalAid, for the Applicant