HKSAR v. Ho King Nang and Others
Read the full judgment text of CACC 445/2010 on BabelCite. This Court of Appeal judgment was delivered on 30 November 2011 before Stock VP, Cheung JA, M. Poon J.
Criminal law – conspiracy to defraud – employment-fraud scheme modelled on Loco London gold/silver scams – victim recruited as accounts clerk, then induced to invest savings in non-existent cross-border mobile-phone trading – two shelf companies set up with no genuine trading activity – sufficiency of evidence – procedural regularity of withdrawal of admitted facts under s.65C(4) of the Criminal Procedure Ordinance (Cap 221) – sentencing – whether four years' imprisonment is the appropriate starting point for all participants in such conspiracies – whether three-month deduction adequately compensates for two-and-a-half year prosecution delay – whether two-year enhancement for repeat offenders is excessive. Held, dismissing the 2nd and 5th defendants' applications for leave to appeal against conviction: the evidence overwhelmingly established an elaborate conspiracy to cheat So Ying, and both defendants were key active participants—the 2nd defendant engineered the victim's introduction to the fake supplier and courier and instigated her participation in the bait and main transactions, while the 5th defendant posed as Good Wealth's manager, directed her movements, and his border-crossings closely tracked those of the 1st and 4th defendants. Held, rejecting the procedural challenge: the Judge had clear power under s.65C(4) of the Criminal Procedure Ordinance to permit the prosecution to withdraw the first set of admitted facts, and no error in the exercise of that discretion was shown. Held, on sentence: the four-year starting point established in HKSAR v Tsoi Shu & Ors [2005] 1 HKC 51 and confirmed in HKSAR v Law King Yip and others (CACC 369/2003), HKSAR v Au Koon Yip (CACC 271/2007) and HKSAR v Tsang Chi Sang, Ricky (CACC 430/2007) applies to all participants in employment-fraud conspiracies and was correctly applied to all four defendants. Held, on delay: the two-and-a-half year period between arrest and the laying of charges constituted unreasonable delay through no fault of the defendants, and a three-month deduction was appropriate, applying Mills v HM Advocate 2002 SCR 860, HKSAR v Lau Kin-yu [2003] HKCU 251, Secretary for Justice v Schmitt [2008] HKCU 979 and HKSAR v Wong Ka Wah (CACC 260 and 261/2006). Held, allowing the 2nd and 3rd defendants' sentence appeals: while an enhanced sentence for repeat offending was warranted following HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, the two-year increase imposed by the Judge was excessive—being two-thirds of the 2nd defendant's prior sentence, almost equal to the 3rd defendant's prior sentence, and a 53% increase over the three-years-and-nine-months base sentence—and a nine-month increase was substituted, yielding a final sentence of four years and six months. Leave to appeal against sentence refused for the 4th and 5th defendants, whose three years and nine months stood.
Legal issues: Sufficiency of evidence for conspiracy to defraud · Procedural regularity of withdrawal of admitted facts · Appropriate starting point for sentencing in employment-fraud conspiracy · Adequacy of discount for prosecution delay · Excessiveness of two-year enhancement for repeat offenders
Outcome: Leave to appeal against conviction refused for the 2nd and 5th defendants; the 3rd defendant abandoned her conviction application and it was dismissed. Sentence appeals by the 2nd and 3rd defendants allowed in part—sentences reduced from five years and nine months to four years and six months. Leave to appeal against sentence refused for the 4th and 5th defendants, whose sentences of three years and nine months were upheld.
Cited by 19 cases · Cites 10 cases
|
CACC 445/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 445 OF 2010 (On Appeal From District Court Criminal Case No. 1192 of 2009) ________________________ BETWEEN
________________________ Before : Hon Stock VP, Hon Cheung JA and M. Poon J in Court Date of Hearing : 3 November 2011 Date of Judgment : 3 November 2011 Date of Reasons for Judgment : 30 November 2011 ________________________ REASONS FOR JUDGMENT ________________________ Hon Cheung JA (giving reasons for judgment of the Court) : 1.The four applicants in this application were the 2nd, 3rd, 4th and 5th defendants in the trial below. For ease of reference we will refer them as the defendants. They together with the 1st defendant were convicted after trial by H H Judge Longley of the offence of conspiracy to defraud. They were sentenced as follows :
2.The 2nd, 3rd and 5th defendants applied for leave to appeal against conviction and sentence, while the 4th defendant only applied for leave to appeal against sentence. The 3rd defendant abandoned her application for leave to appeal against conviction at the hearing and was dismissed by this Court. 3.After hearing we dismissed the 2nd and 5th defendants’ application for leave to appeal against conviction. We allowed the application by the 2nd and 3rd defendants for leave to appeal against sentence and treated it as the appeal proper. We quashed their respective sentence of five years and nine months and substituted by a sentence of four years and six months. We dismissed the 4th and 5th defendants’ application for leave to appeal against sentence. 4.We now give our reasons. The charge 5.The victim of the conspiracy charge was one Madam So Ying (‘So Ying’). She was a middle-aged woman and owned her own flat and who had a reasonably large sum of savings. 6.The particulars of the charge alleged that the five defendants between 15 December 2006 and 9 February 2007 conspired together with others to defraud So Ying by dishonestly and falsely :
Summary of evidence 7.The Judge found that there was an elaborate scheme to defraud So Ying. We will gratefully adopt substantially the finding made by the Judge which was outlined in his Reasons for Sentence. 8.In January 2007 two shelf companies were bought and premises rented. One of the companies, Sure Rise, purported to be a company trading in mobile phones, and the other, Good Wealth (China) Limited, whose offshoot, Good Wealth, purported to trade in cheap costume jewellery. 9.Dummy telephones and advertising material were acquired to give the premises of Sure Rise the semblance of a genuine business. 10.Some cheap costume jewellery was bought and put on display in the office of Good Wealth. 11.A young receptionist, Karen Lam, was employed by Good Wealth and a young man, Siu Wang-yip, was employed by Sure Rise as a salesperson to give the companies the appearance of legitimacy. 12.The two companies were closely connected. 13.The 1st defendant, who held himself out as being the manager of Sure Rise, was involved with the 3rd defendant in renting the premises of Good Wealth. Both gave false names to PW6, the agent who took them to view potential premises for Good Wealth’s office. 14.The 1st defendant also gave a false name to Siu Wang-yip. 15.Advertisements were placed in the press, advertising positions in Good Wealth as accounting clerks and merchandisers. 16.The interviewing of job applicants and selection of potential victims was done by the 5th defendant, purporting to be the manager of Good Wealth, whereas the 2nd and 3rd defendants posed as other members of the staff of that company. 17.So Ying was interviewed for the post of accounts clerk at Good Wealth by the 5th defendant on 31 January 2007. During the course of the interview, information was elicited from her that she owned her own home and had savings. 18.Later that day, she was told that she was engaged. 19.When she first reported to work on 2 February 2007, she was required to produce her bank savings book to the 5th defendant, which showed a credit balance of over $100,000. 20.She was introduced to the 2nd defendant and the 3rd defendant as being fellow members of the staff. It was pretended that it was also the 3rd defendant’s first working day at the company. 21.The 5th defendant instructed the 2nd defendant to teach So Ying and the 3rd defendant the duties that they should perform. The tasks that So Ying and the 3rd defendant were instructed to perform that day were purely nominal, and about 3 pm, the 5th defendant told them they could leave early. 22.On So Ying’s second day at work, 5 February 2007, she was led by the 5th defendant, accompanied by the 2nd and 3rd defendants, on a trip to Mong Kok, to look at shop premises Good Wealth intended to rent, but in reality, as a pretext after the visit was over, for the 2nd and 3rd defendants to introduce So Ying to the 1st defendant at Sure Rise as a purported supplier of mobile phones. The pretence that was put forward by the 2nd defendant was that he wanted to look at mobile phones. 23.Thereafter, the 5th defendant instructed the 2nd defendant and the 3rd defendant to accompany So Ying to the Mainland on the next four successive days, the stated purpose being ‘to see how costume jewellery was bought there’. 24.On the first of these visits to Shenzhen on 6 February 2007, costume jewellery of only very small value was bought at different stalls. 25.At one point, the 3rd defendant stated that she wanted to sell a mobile phone. The 2nd defendant then led the 3rd defendant and So Ying to a mobile phone shop and introduce her to a man who identifed himself as Mr. Lam. The 3rd defendant purported to sell a mobile phone to this Mr. Lam. 26.Thereafter, the 2nd defendant suggested that they have a foot massage. The 2nd defendant, accompanied by the 3rd defendant, led So Ying to a foot massage establishment where the 4th defendant appeared and talked to the 2nd defendant. The 4th defendant represented himself to be a driver who would be in a position to smuggle goods across the border. 27.On the following day, 7 February 2007, the 5th defendant again instructed So Ying to accompany the 2nd and 3rd defendants to Shenzhen on a purported buying expedition. Once more costume jewellery of very little value was bought. 28.During the visit, the 2nd defendant claimed that he too wanted to sell a mobile phone. The 2nd defendant took So Ying, accompanied by the 3rd defendant, back to the shop where they had been the previous day. 29.It was while visiting Mr. Lam at the shop that Mr. Lam, apparently without any prompting from the 2nd or 3rd defendant, proposed a deal to So Ying, the 2nd defendant and the 3rd defendant involving 10 mobile phones which would be bought in Hong Kong and then brought over the border where they would be sold at a higher price. 30.On their return to Hong Kong after Mr. Lam had proposed the deal involving 10 mobile phones, the 2nd defendant arranged a meeting with the 4th defendant, at which So Ying and the 3rd defendant were present. The 4th defendant said that he agreed to transport the 10 mobile phones to the Mainland for a small fee of $300. 31.This meeting with the 4th defendant was followed by a visit to the 1st defendant at the premises of Sure Rise, where the 10 mobile phones were purportedly ordered from the 1st defendant. 32.So Ying was prevailed upon to contribute $5,840 as her one-third contribution to this proposed deal. 33.On the next day, 8 February 2007, the 5th defendant again instructed So Ying to accompany the 2nd and 3rd defendants to Shenzhen on a buying expedition. 34.On the following day, the 2nd and 3rd defendants together So Ying went to Sure Rise’s premises, where they received the 10 mobile phones. The mobile phones were then delivered to the 4th defendant for him to transport to the Mainland. 35.Following this, So Ying, the 2nd and 3rd defendants then crossed the border. They then received the 10 mobile phones back from the 4th defendant and delivered them to Mr. Lam, who paid the price as agreed. So Ying, the 2nd and 3rd defendants made a small profit of $160 each. 36.Mr. Lam then proposed a much larger deal involving 320 phones, which the 2nd defendant apparently accepted. 37.The 2nd defendant purported to make a call to Sure Rise to enquire how much Sure Rise would charge for the phones in Hong Kong. The 2nd defendant informed So Ying that Sure Rise would charge $978,100. The 2nd defendant then attempted to persuade So Ying to contribute one-third of this sum, i.e. over $300,000. 38.So Ying reluctantly acquiesced in contributing the $5,840, plus the profit of $160, which she was led to believe she had earned on the transaction involving the 10 phones, to be used towards a deposit to be paid to Sure Rise for the 320 phones. 39.She did not agree to anything further. 40.On her return to Hong Kong, So Ying was taken by the 2nd defendant, accompanied by the 3rd defendant, to a restaurant where they met the 4th defendant. The 4th defendant agreed that he would agree to take the 320 phones to the Mainland. 41.The 2nd defendant, accompanied by the 3rd defendant, then led So Ying to Sure Rise’s office, where $72,000 was given to the 1st defendant as a purported deposit for the 320 mobile phones. 42.The 1st defendant pretended to make a call from his office to a supplier, confirming that 320 mobile phones were available. 43.The 2nd defendant told So Ying that she and the 3rd defendant should meet him at Sure Rise’s building the following day at 10.30 am, when they should each contribute a one-third share of the balance of the purchase price. 44.That evening, the 5th defendant again instructed So Ying to accompany the 2nd and 3rd defendants on yet another buying expedition to the Mainland. 45.During the course of the night, So Ying became very reluctant to have anything further to do with the proposed deal. She called the 2nd defendant some time after 8 am to express her reluctance to participate in the deal. He told her that no one could take her place and that she should obtain a loan. 46.Just before 10.30 am, she called the 2nd defendant again. He informed her that she could contribute $100,000 and he would try to get someone else to raise the balance. 47.Shortly beforehand, So Ying had called the 3rd defendant, who claimed she was at a bank withdrawing money. 48.When So Ying went to Sure Rise’s building at 10.30 am, neither the 2nd nor the 3rd defendants were present. She received calls from them, urging her to go up to Sure Rise’s premises first, as well as a call from the 1st defendant, asking if she was coming up to the premises. 49.So Ying went to the bank to withdraw her contribution. The Police were in the bank who told her of the fraud. 50.The 1st defendant was arrested at Sure Rise’s office. 51.The 2nd, 3rd and 4th defendants were found waiting at a nearby restaurant and were arrested. 52.The 5th defendant was in the Mainland, but returned for just over an hour and a half later in the afternoon, only to return quickly to the Mainland. He returned to Hong Kong eight days later and was arrested. 53.The 1st defendant was found with the bulk of the $72,000 which had been given to him on 8 February 2007. So Ying’s $5,840 could be returned to her. The defence 54.None of the defendants gave evidence or called evidence on their behalf. Leave to appeal against conviction The 2nd defendant 55.The 2nd defendant’s grounds of appeal can be summarised as follows :
The 5th defendant 56.The 5th defendant relied on the following grounds of appeal :
Overview of the grounds of appeal 57.The defendants’ appeal can be grouped into two broad issues :
Evidence of a conspiracy 58.We will address the first issue first. It is not necessary for us to address the individual complaints by the defendants on the Judge’s treatment of the evidence. As can be seen from an overview of the evidence these complaints are without merits. 59.It is important to bear in mind that the charge is one of conspiracy. The crux of the charge is whether there was an agreement to commit an illegal act, namely, to defraud So Ying. In our view there was clearly sufficient evidence in support of the charge. Two new companies were set up. The personnel of these two companies were closely connected. According to Karen Lam who was employed as a receptionist in Good Wealth, she was interviewed by the 1st defendant and was told by him to report to the 5th defendant for work. When she turned up for work at Good Wealth’s premises she saw both the 1st and 5th defendants in the premises. During the time she worked for Good Wealth, she had seen the 1st defendant at the office on five or more occasions, talking to the 2nd, 3rd and 5th defendants. Although 1st defendant had no desk at the office, he had on occasions given her instructions as to how to record the particulars of applicants for job interviews and what to say to them when they asked for particular people. 60.The companies did not seem to have any real trading activities. According to Karen Lam, during the time she worked at Good Wealth, nobody had, to her knowledge, made any telephone calls enquiring about purchasing jewellery nor had anyone visited the office enquiring about purchasing jewellery. She was unaware of any books of account kept in the company. According to Siu Wang-yip (‘Siu’) who was a salesperson in Sure Rise, the telephones on display at the premises were only display dummies. He had never seen any books of account at Sure Rise. He had asked the 1st defendant about the absence of books of account and the 1st defendant said that there were none. As far as he was aware, Sure Rise had no regular supplier of mobile phones. He had asked the 1st defendant from which supplier the 320 telephones had been ordered and the 1st defendant did not give any reply. When the Police searched Sure Rise no real mobile phones were found. 61.There was a total lack of commercial justification for employing So Ying and Madam Tang to have performed the tasks that were assigned to them. The Good Wealth was to recruit employees which fit a certain profile. The 5th defendant told Karen Lam that if the applicant was a female aged between 35 and 55, she should immediately arrange an interview. If not, she should leave it to them to decide who to interview. 62.The key players pretended that they did not know each other. The 3rd defendant who obviously knew the 2nd and 5th defendants pretended to the new recruits that she was also a new employee. When applicants for jobs arrived for interview, the 2nd, 3rd and 5th defendants who had previously been talking together would pretend not to know each other. The 5th defendant would come out of his office and ask Karen Lam if the 2nd and 3rd defendants were new colleagues, and she would say, ‘Yes’, and then the 2nd and 3rd defendants would be asked their names. When So Ying came to Sure Rise the 1st defendant told her that his name was Chan. Again the 1st defendant pretended that he did not know the 2nd and 3rd defendants. 63.The 4th defendant who appeared to have met So Ying in a chance encounter was asked to transport mobile phones to the Mainland by the 2nd defendant in a private transaction. Yet he was observed to have departed from the Mainland with the 1st and 5th defendants within an hour of So Ying departing there with the 2nd and 3rd defendants on 8 February 2007, and then return with the 1st and 5th defendants the same afternoon. 64.These were not normal activities one would expect in a legitimate business. It is beyond doubt that a conspiracy existed and the purpose was to cheat So Ying of her money. It is amply demonstrated by the way in which So Ying was invited to take part in the two transactions. The illegal purpose was also supported by the evidence of PW9, Madam Tang whom the 2nd defendant suggested should start a business in the Mainland on her first day at work. After Madam Tang had indicated that she did not have sufficient money and was not interested in making a private investment, she was told that the company’s boss had decided that she should not report for duty until three weeks’ later on 24 February 2007. At the same time So Ying was engaged to start work in the same capacity on 2 February 2007. As the Judge observed this must have been because So Ying seemed to be a more promising target. If the conspiracy existed, it does not matter if So Ying had not in fact parted with her money in the second transaction. The contention that the second transaction might be completed if not for the Police’s intervention is totally unrealistic. The role of the 2nd and 5th defendants 65.It is clear from the Judge’s analysis of the evidence that the 2nd and 5th defendants were not some innocent employees in Good Wealth and were unaware of the fraud. The 2nd defendant 66.The 2nd defendant was involved in the recruitment process at Good Wealth. He gave the impression both to Madam Tang and So Ying that it was the 3rd defendant’s first day at work. 67.He was the person who engineered So Ying’s introduction to Sure Rise by suggesting that they visit a mobile phone shop. In so doing he concealed from her the 1st defendant’s involvement in Good Wealth. 68.He was the person who engineered So Ying’s introduction to the person who gave his name as Mr. Lam at the mobile phone shop in Shenzhen. 69.He was the person who instigated and encouraged So Ying to participate in the bait transaction relating to the 10 mobile phones. 70.Later, his part was to persuade her to contribute to the purported deal involving 320 mobile phones. 71.The 2nd defendant was legally represented at the trial. He did not explain why his record of interview was wrongly admitted. In any event the Judge did not rely on it in his finding against him. The 5th defendant 72.His role was to appear to be the manager of Good Wealth, to interview and employ So Ying for that company and to give directions as to the tasks she should perform and the places she should visit, so as to give opportunity to his fellow conspirators to introduce her into the purported telephone transaction. 73.On 5 February 2007, he left Hong Kong for Shenzhen within 31 seconds of the 4th defendant who later turned up at a message parlour where So Ying, the 2nd and 3rd defendants were and introduced himself to the 2nd defendant as someone who could smuggle goods to the Mainland. On 8 February 2007, when it was arranged for the 4th defendant to deliver the first batch of ten telephones to So Ying, the 5th defendant crossed the border to Shenzhen at about the same time as the 1st and 4th defendants. He again returned to Hong Kong that afternoon at about the same time as the 1st and 4th defendants. On the same evening, the 5th defendant crossed the border again to Shenzhen at about the same time as the 1st, 2nd and 4th defendants. These are more than co-incidences. 74.The 5th defendant returned to Hong Kong on the morning of 9 February 2007, at 2.15 pm, by which time all the other defendants had been arrested. He left Hong Kong about an hour and a half later. On 11 February 2007, he telephoned Karen Lam, asking her about what the Police had asked her and suggesting that she did not identify them. He did not return until 17 February 2007, when he too was arrested. 75.He was interviewed by the Police on 17 February 2007. The record of interview was admitted as evidence. The 5th defendant was legally represented at the trial. He did not state why the record was wrongly admitted. 76.The Judge was satisfied that he minimised his role in Good Wealth in his interview and the Judge placed no weight on his answers. In our view, the Judge was entitled to do so having regard to the evidence of the case. Procedural irregularity : Admitted facts 77.The trial commenced on 28 June 2010. It was then adjourned for the parties to reach an agreement on the admitted facts. On 29 June 2010, the prosecution opened the case and read the admitted facts. The prosecution case was based on a fake employment. However the then admitted facts seemed to suggest that So Ying was genuinely employed by Good Wealth. The Judge commented on this. The prosecution later applied to withdraw the admitted facts which were opposed by all the defence counsel. On 30 June 2010, the prosecution’s application to withdraw the admitted facts was granted by the Judge and new sets of facts were agreed between the prosecution and the respective defendants. Subsequently when the conduct of the prosecution was taken over by another fiat counsel, a new set of admitted facts dated 12 November 2010 was signed by the parties. 78.Section 65C(4) of the Criminal Procedure Ordinance, Cap. 221, provides that
79.The Judge clearly had the power under this provision to allow the prosecution to withdraw the first set of admitted facts. The defendants had not shown that the Judge had erred in the exercise of his discretion. In any event, the prosecution still had to prove its case by calling evidence. Conclusion on conviction 80.In our view, the 2nd and 5th defendants’ application on conviction has no merits and was accordingly dismissed. Leave to appeal on sentence 81.The Judge first adopted a starting point of four years’ imprisonment for all the defendants. He then deducted three months for delay in prosecution and arrived at a sentence of three years and nine months’ imprisonment. This is the sentence he imposed on the 4th and 5th defendants. As the 2nd and 3rd defendants each had a previous conviction of a similar nature, the Judge enhanced their sentences by an extra two years, resulting in a sentence of five years and nine months’ imprisonment. Is four years’ imprisonment the appropriate starting point? 82.The conspiracy in the present case is a variation of the Loco London gold or silver fraud schemes. Refreshly recruited employees of a company which does not carry out any real business activities are enticed to put money in some non-existing investment in promise for high returns : (see HKSAR v. Tsoi Shu & Ors [2005] 1 HKC 51). Many of the victims lost their life savings in this way. It was an elaborate and heartless scam to cheat the unsophisticated and gullible victims. This Court has repeatedly stated that a deterrent sentence is required in offences of this type : Tsoi Shu, HKSAR v. Law King Yip and others (CACC 369/2003). 83.In Tsoi Shu this Court referred to the previous authorities which held that a four-year imprisonment was the appropriate starting point. This starting point applies to all the players who took part in the fraud without distinguishing whether someone is playing a minor role. On the other hand, this starting point may be adjusted upwards if there are aggravating factors, such as someone who had a higher degree of involvement with the fraud. 84.More recent cases involving the employment fraud schemes affirmed the starting point of four years’ imprisonment : see HKSAR v. Au Koon Yip (CACC 271/2007) and HKSAR v. Tsang Chi Sang, Ricky (CACC 430/2007). 85.It is true that in Tsoi Shu there were nine victims who had lost a total of over $2 million in two separate conspiracies and in Law King Yip and others, the conspiracy spanned over 14 months where a number of employees were defrauded of $3 million. However, proceeding on the basis that the four-year starting point is intended to be a deterrent to criminals who devised what on the face to be legitimate business to cheat people of their savings, we do not consider that we should adopt a lower starting point for the present case. It is only because of the quick action of the Police that the fraud was stopped and this prevented other potential victims who might have responded to the advertisement for jobs placed by Good Wealth from being cheated. 86.It can be readily seen from the evidence that each of the defendants were actively engaged in the fraud. The 2nd defendant played the role of instructing So Ying in her new job. He was actively involved in the two telephone transactions. The 3rd defendant was involved from the beginning at least from the time of the leasing of the Good Wealth’s premises. She not only pretended to So Ying that she was a new employee, she also accompanied So Ying on the trips to Shenzhen. The 4th defendant was also closely connected in the scheme. He was not simply a courier of the mobile phones. He travelled at about the time of the 5th defendant to Shenzhen and where he purported accidentally to become acquainted with the 2nd defendant, 3rd defendant and So Ying in a massage establishment. On the day he delivered the first batch of telephones to So Ying, he crossed the border at the same time as the 1st and 5th defendants. They returned to Hong Kong again at exactly the same time in the afternoon. As the Judge found no explanation had been offered as to why the 4th defendant should have crossed the border, not only with the 1st defendant, who apparently was simply the supplier of the mobile phones, but also with the 5th defendant who, as far as So Ying was concerned, had no involvement with the mobile phones transactions and was apparently the manager at Good Wealth who had instructed her to visit the Mainland on the business of costume jewellery that day. The 5th defendant was likewise heavily involved in the fraud as found by the Judge. In our view the Judge was plainly right to apply the starting point of four years’ imprisonment to all four defendants. Discount for delay 87.The defendants argued that the 3-month deduction for delay is not sufficient. The respondent, on the other hand, argued that the discount should not be given at all. 88.The 2nd, 3rd and 4th defendants were arrested together with the 1st defendant on 9 February 2007 and the 5th defendant was arrested on 17 February 2007. On 5 March 2007 an identification parade was held in which the 1st, 2nd and 4th defendants were identified. The 3rd defendant, however, was not identified by PW6 because of the change of her appearance. On 23 May 2007, PW9 Madam Tang contacted the Police and pointed out the 3rd defendant to two policemen outside a fast food outlet. The next step that happened in the chronology of events was on 4 June 2008 when the Department of Justice received the file from the Police for legal advice which was provided on 26 September 2008. It suggested further investigation by the Police. On 22 December 2008, PW6 attended a photographic identification parade and identified the 3rd defendant. Further advice was sought from Department of Justice on 2 February 2009 which was given on 24 July 2009. It recommended charges against the defendants which were eventually laid on 1 September 2009. 89.Unreasonable delay in prosecution can be taken into account in sentence. The position is correctly summarised by Cross and Cheung in Sentencing in Hong Kong page 381 :
90.The cases of SJ v. Hui Siu Man [1999] 2 HKLRD 236 and HKSAR v. Cheung Suet Ting [2010] 6 HKC 249 which referred to situations of delay which gave a defendant an opportunity to rehabilitate himself and made restitution, do not weaken in any way the basic principle that the Court may give a deduction if there has been unreasonable delay in prosecution. 91.In HKSAR v. Law King Yip (CACC 369/2003) and HKSAR v. Wong Ka Wah (CACC 260 and 261/2006) this Court observed that delay apparent had to be viewed in the context of the investigation which was being conducted. While recognising that further investigations might be required in the present case after the arrest of the defendants, we consider that the two and a half years taken to charge the defendants was unduly lengthy and we consider there was unreasonable delay which the Judge was correct to give a three-month discount on sentence. Enhancement of the 2nd and 3rd defendants’ sentences 92.The 2nd defendant was sentenced previously in 2002 to three years’ imprisonment on a conspiracy to defraud charge. The 3rd defendant was sentenced in 2001 to 2 years and 2 months’ imprisonment to a similar charge. Both of them were engaged in the Loco London gold/silver employment scams similar to the present case. 93.That a re-offender may receive an enhanced sentence as a deterrence is well established. This is to ensure that the public is protected from the criminal activities of the re-offender : see HKSAR v. Chan Pui Chi [1999] 2 HKLRD 830, HKSAR v. Tam Kam Mun, CACC 327 of 2001, HKSAR v. Chau Hon Kwong, CACC 86 of 2010 and HKSAR v. Tang Wing Cheung, CACC 146 of 2002. 94.The Courts have treated the present offence as a serious crime and have imposed sentences which are intended to be deterrent. The 2nd and 3rd defendants, had despite being sentenced for a similar type of fraud, chose to engage themselves again in the present fraud. We are of the view that the Judge was clearly correct to increase their sentences. However, in our view the two-year increase is excessive. A sense of proportion must be adopted. After all they had been penalized for their earlier crime. The two-year increase is two third of the first sentence that was received by the 2nd defendant and is almost the same length of the sentence received by the 3rd defendant. It is also a 53% increase from the sentence of three years and nine months. As Mr. David Leung SADPP (appearing together with Ms Mickey Fung SPP for the respondent) conceded he was unable to find any case which shows such a high level of enhancement. 95.We are of the view that a nine-month increase is appropriate. Conclusion on sentence 96.Accordingly the sentence for the 2nd and 3rd defendants should be four years and six months’ imprisonment and that of the 4th and 5th defendants should remain at three years and nine months’ imprisonment.
Mr. David Leung SADPP and Ms Mickey Fung SPP of Department of Justice, for the Respondent Mr. Andrew Raffell, instructed by Messrs Bobby Tse & Co., assigned by Director of Legal Aid, for the 1st Applicant/2nd Defendant (on sentence) 1st Applicant/2nd Defendant : in person, present (on conviction) Ms Mabel Tsui, instructed by Messrs M. K. Lam & Co., assigned by Director of Legal Aid, for the 2nd Applicant/3rd Defendant (on sentence) 2nd Applicant/3rd Defendant : in person, present (on conviction) Mr. Bruce C. H. Tse, instructed by Messrs Cheung & Liu, for the 3rd Applicant/4th Defendant 4th Applicant/5th Defendant : in person, present |
Cases cited in this judgment
Other judgments that cite this case