HKSAR v. Lam Shak Kuen

CACC89/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.89 OF 2012

(ON APPEAL FROM DCCC 855 OF 2011)

____________

BETWEEN

____________

Before: Hon Chu JA in Chambers

Date of Hearing: 13 November 2012

Date of Decision: 13 November 2012

_______________

DECISION

_______________

1.This is the applicant’s application for bail pending appeal.

2.On 8 February 2012, the applicant was convicted after trial jointly with Li Tianbao (“D1”) of two counts, namely, (1) conspiracy to fraud, contrary to common law and punishable under section 159C(6) of the Crimes Ordinance, Cap. 200; and (2) using a false instrument, contrary to section 73 of the Crimes Ordinance.  On 9 February 2012, the applicant was sentenced to 4 years 10 months and 1 year 10 months respectively for the two counts, to be served concurrently. 

3.On 7 March 2012, the applicant lodged an application for leave to appeal against conviction and sentence.  The application is scheduled to be heard on 21 March 2013.

4.By summons filed on 11 October 2012, the applicant applies for bail pending appeal. The respondent opposes the application.

5.The relevant legal principles are well settled.  Bail pending appeal is exceptional and generally speaking should only be granted where it appears that the appeal would be successful, or where there is a risk that the whole or a substantial part of the sentence would have been served by the time the appeal was heard: HKSAR v. Lau Man Kin [2010] 1 HKLRD 336.

6.The applicant’s application is primarily premised on the ground that the chances of his appeal against conviction and sentence being successful are very high.

7.Briefly stated, the facts of the case are as follows.  Liu Qiang (“Liu”) is a businessman from mainland China. He was interested in obtaining a business loan to finance his company’s projects.  He became acquainted with a person called Wei Bing (“Wei”) during a finance talk held in Hong Kong.  Through Wei, Liu came to know D1.

8.It was agreed among D1, Wei and Liu that D1 would deposit US$1 billion into Liu’s HSBC bank account to serve as collateral to a loan from HSBC to Liu, in return for which Liu had to pay D1 a fee of HK$8.5 million. 

9.On 8 May 2011, Liu paid a down payment in the total sum of RMB 2.5 million into two bank accounts in Shenzhen, held respectively by D1 and another person.  On the following day, Liu, Wei and D1 signed a tripartite contract, under which D1 was to transfer US$1 billion to Liu’s HSBC account, whereupon Liu would pay D1 the remaining fee in the sum of HK$5.5 million and Wei was to act as a guarantor to the contract.

10.On 18 May 2011, Liu, Wei and D1 went to HSBC’s main branch in Central for the purpose of confirming that D1 had deposited US$ 1 billion in Liu’s account.  When at the bank, Wei waited downstairs while D1 and Liu went to the 5^th floor.  At the 5^th floor, Liu met up with two officers from Credit Suisse, whom Liu said were there to check the status of Liu’s bank account as Liu had applied to Credit Suisse for a loan. 

11.The applicant was also present on the 5^th floor impersonating as a HSBC staff. He had put on a forged HSBC staff card (exhibit P6) that bore a genuine photograph of his. D1 gave Liu’s passport to the applicant. The applicant then went away and later returned with a brown envelope that contained a forged HSBC bank statement of Liu’s account (exhibit P4), purporting to show it had received a deposit of US$1 billion. D1 took out P4 to show it to Liu. At this point, Liu noticed the applicant acted nervously and his staff card was different from those worn by other bank staff. As the applicant turned away to leave, one of the Credit Suisse officers asked if he was a HSBC staff, to which the applicant did not reply. Liu then stopped him from leaving. A commotion ensued. The bank’s security guards were alerted and a report was made to the police. The applicant’s false identity was found out. He, together with D1 and Wei, were arrested by the police officers. Under caution, the applicant stated that a person surnamed Leung gave him $5,000 and some documents, and told him to put on the HSBC staff card and go to the 5^th floor of the bank to give the documents to someone. 

12.The evidence from HSBC (by way of banker’s affidavits) showed that D1’s bank account was closed in January 2010 and at no time did he have US$ 1 billion with it. Neither had D1 ever deposited US$1 billion into Liu’s account with HSBC.

13.The applicant elected to give evidence. His evidence is that, at the request of his business partner, Mr Tsang, he went to the bank to help a Mr Leung, whom he himself did not know. When he was on the ground floor of the bank, a man identified himself to be surnamed Leung, and put on him something like a pass and told him to go to the 5^th floor to get a document for him. When he was at the 5^th floor, someone waved at him and gave him a passport to take to Leung. After he did as told, Leung gave him the brown envelope, which he took to the 5^th floor and handed to D1. The applicant’s case, in short, is that he was an innocent messenger who knew nothing about the fraud.

14.The trial judge rejected the applicant’s evidence as not worthy of belief. He found there was an agreement to falsely represent to Liu that D1 would deposit US$ 1 billion into Liu’s HSBC account to facilitate Liu to obtain a bank loan and to falsely represent to Liu that he should pay D1 the agreed fee of HK$8.5 million. He also found that D1 and the applicant were knowing parties to the agreement to defraud Liu and that there were other unknown people involved. He further found that Liu had indeed paid RMB 2.5 million to D1. The trial judge was also satisfied that exhibits P4 and P6 were used by D1 and the applicant (who acted in concert) to put up an appearance that US$1 billion had been deposited into Liu’s HSBC account and that they both know about the falsity of the documents. The trial judge was satisfied that the charges had been proved beyond reasonable doubts and he convicted the applicant accordingly.

15.In sentencing, the trial judge considered that this was a sophisticated and well planned out fraud that carried a cross-border element. He did not accept that the applicant played a minor role or that he only became involved at a late stage of the fraud. He regarded the applicant’s role as crucial to the successful penetration of the fraud. The trial judge referred to the case of HKSAR v. Ng Kwok Wing [2008] 4 HKLRD 1017 and HKSAR v. Ng Siu Ling (unreported) CACC 160/2011, acknowledging at the same time that the former was a case involving breach of trust whereas the present case is not. He adopted 5 years and 2 years as the respective starting point for the two counts. Having regard to the applicant’s clear record, he allowed a reduction of 2 months and sentenced him on the two counts to 4 years 10 months and 1 year 10 months, to run concurrently.                         

16.The applicant’s perfected grounds of appeal set out four grounds of appeal against conviction and three grounds of appeal against sentence. In brief, the applicant contends there is no evidence to support that he was a party to the conspiracy or that he had knowledge of the fraud and that the trial judge erred in not giving due consideration to the possibility of his being an innocent messenger. The applicant also argues that the trial judge ought not to have accepted the evidence of Liu and/or rejected his evidence. As for sentence, the applicant’s complaints are that the trial judge erred in referring to authorities that are distinguishable and contain aggravating circumstances and that the trial judge ought to have adopted a lower starting point having regard to the relatively minor role played by the applicant.

17.In his oral submission, Mr Yuen, who appears for the applicant, criticizes the trial judge’s reasoning that the penetrators of the fraud would not have involved someone who was completely ignorant of the fraud, arguing that had the applicant been a knowing party to the conspiracy, he would not have remained silent when the Credit Suisse staff asked if he was a HSBC staff. It is said that this and the fact that he went for a medical appointment before turning up at HSBC on 18 May 2011 show that the applicant is indeed an innocent messenger.  

18.Miss Fung who appeared for the respondent has in her written submissions made a detailed response to the applicant’s grounds of appeal by reference to the evidence in the trial and the Verdict given by the trial Judge.

19.As application for bail pending appeal is not the occasion for in-depth discussions of the merits of appeal, I will not go into detailed analysis of the arguments on both sides. Taking a broad view of the case, I am not persuaded that the applicant can be said to enjoy very good chances of a successful appeal.   

20.The appeal against conviction is founded primarily on the findings of facts made by the trial judge and in turn the credibility of Liu and the applicant. In coming to the finding that the applicant was a party to the conspiracy and rejecting the defence case that the applicant was an innocent messenger, the trial judge had given an analysis of the evidence and the basis for the inferences that he drew as to the applicant’s role, knowledge and intention (see paragraphs 34 to 53 of the Verdict).  In my view, it is not readily apparent that the trial judge’s findings as to primary facts and/or the inferences to be drawn are plainly devoid of evidential support or entirely untenable.  This is particularly the case with regard to the conviction of the 2^nd count of using a forged document. As to the conclusions on the credibility of Liu and the applicant, the trial judge had also given full reasons for them.  It is trite that the appellate court is slow to interfere with a trial judge’s findings on credibility of witnesses or the inferences of facts he draws when the inferences depend partly on credibility of witnesses and facts that are in dispute: see R v. R E Low [1961] HKLR 13 at 82 per Blair-Kerr J, adopted in The Queen v. Sheik Abdul Rahman Bux & Others [1989] 1 HKLR 1 at 5C-E.

21.With regard to the appeal against sentence, it is sufficient to make two points. The first is that even if the applicant were successful on the appeal against sentence, it is unlikely to result in a huge reduction in the total sentence, such that it could be said that substantial injustice would be done by retaining the applicant in custody pending the appeal. Secondly, Mr Yuen has submitted if the conviction of the 1^st count of conspiracy to defraud is quashed, there will be a reduction in the sentence of the 2^nd count because the basis for sentencing will be different. I do not believe it is likely that the sentence of the 2^nd count would be substantially reduced (if it would be reduced) if the applicant were to be successful in his appeal against the conviction of the 1^st count. The background and context in which the applicant committed the 2^nd offence remains the same. I do not accept there would be substantial injustice in refusing bail to the applicant even if it could be said that he has a high prospect of success in the appeal against the conviction of the 1^st count.      

22.For the reasons indicated above, the application for bail is refused.

Miss Catherine Fung, ADPP, of the Department of Justice, for the respondent

Mr Ernest Yuen, instructed by Messrs Raymond Kwong & Co, for the applicant.