HKSAR v. Tsang Wai Lun Wayland and Another

CACC 96/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 96 OF 2010

(ON APPEAL FROM DCCC NO. 24 OF 2008)

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BETWEEN

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Before: Hon Stock VP, Yeung VP and Lunn JA in Court

Date of Hearing: 7 December 2012

Date of Judgment: 7 December 2012

Date of Handing Down Reasons for Judgment: 20 December 2012

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REASONS FOR  JUDGMENT

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Hon Stock VP (giving the Reasons for Judgment of the Court):

Introduction

1.On 28 November 2002, we handed down judgment in relation to the application of five applicants for leave to appeal against conviction.  The disposition of those applications was that:

(1)   In relation to charge 1 - a charge of conspiracy to defraud – we set aside the conviction of the applicants Tsang and Kwok (D1 and D2) because, given the judge’s determination that he could not be sure that any of the other alleged co-conspirators was party to the conspiracy alleged by that charge, it was, by reason of s 159B(2) of the Crimes Ordinance, Cap 200 not open to him to convict Tsang and Kwok alone, since they are husband and wife.

(2)   In relation to charges 3 and 4 as against all five applicants, their appeals against conviction were dismissed.

2.That disposition brought into play, as against Tsang and Kwok, s 83B of the Criminal Procedure Ordinance, Cap 221 which provides as follows:

“(1) This section applies where on an appeal against conviction on an indictment containing 2 or more counts, the Court of Appeal allows the appeal in respect of part of the indictment.

(2) The Court of Appeal may in respect of any count on which the appellant remains convicted pass such sentence, in substitution for any sentence passed thereon at the trial, as it thinks proper and is authorized by law for the offence of which he remains convicted on that count.”

3.No question then arose of addressing the sentences passed in the case of Cheng, Li and Wong since there was no appeal against those sentences, no application by the Secretary for Justice for review of those sentences and section 83B did not apply to their cases since they had been charged and convicted – and the conviction upheld – on one charge only.

4.Accordingly upon handing down judgment we notified those acting for Tsang and Kwok that we would hear counsel on their behalf as soon as was practicable in relation to the appropriate sentences in their cases on charges 3 and 4.

5.On 7 December 2012, we heard counsel upon that issue after which we substituted in respect of charges 3 and 4 sentences higher than those imposed in the court below for those two offences.  These are our reasons for taking that course.

The judge’s approach

6.The judge passed sentence on 17 March 2010.  He expressed the view that to secure financial gain for themselves, Tsang and Kwok engaged in dishonest acts which “would tarnish the hard earned reputation” of the stock market[1] by making false representations of an intention to proceed with a project.  This related to charge 1, the conviction for which is now quashed[2].  He adopted in the case of Tsang a starting point for that offence of 3½ years’ imprisonment; and in the case of Kwok a starting point of 3 years’ imprisonment.  In relation to charge 3[3], he said that it was a serious offence and that it involved prolonged dishonesty by way of deceiving the Stock Exchange as to what was happening with the proposed project, “irresponsible replies,” he said, which “dragged on for half a year.  It ended up with a serious false representation that Grand Field was to sell off their interest in the project.”  The scheme was deployed “to cover up past illegal conduct.  It involved a series of fraudulent replies.  I am of the view that a starting point of 18 months’ [imprisonment] is appropriate to reflect the nature of the offence and degree of culpability,” and he saw little distinction between the culpability of Tsang and that of Kwok[4].

7.In relation to charge 4[5], dealing with proceeds of an indictable offence, he correctly remarked that “the scheme involved a complicated design and accounting professionals … for the purpose of avoiding detection.”[6]  For this offence, he took a starting point of 18 months’ imprisonment for Tsang and Kwok alike.  In relation to Cheng and Li on charge 4, he also took an 18 month starting point and a mere 9 months starting point in the case of David Wong.

8.From those starting points, he made substantial reductions.  He noted that these two applicants were first-time offenders, aged 51 and 48 years respectively, who were unlikely to offend again and said that he was satisfied that each had a positive good character.  He gave a discount for that.  Then he noted the considerable lapse of time between the commission of the offences and the trial which delay, he said, was not the fault of any party; adding that it was understandable that it took time to investigate a case of this nature and complexity, especially bearing in mind its cross-border dimension.  On account of these factors, he came to the conclusion that each defendant was entitled to a one-third discount from the starting point; and Tsang to a further one month discount because of poor health.

9.Against this background he sentenced as follows:

• Tsang on charge 1, to 26 months’ imprisonment; on charge 3 to 11 months’ imprisonment; on charge 4 to 11 months’ imprisonment – the sentences in relation to charges 3 and 4 to run concurrently but six months of that aggregate to run consecutively to the sentence on charge 1 – making a total of 32 months’ imprisonment in his case.

• Kwok on charge 1, to 2 years’ imprisonment; 12 months’ imprisonment in respect of each of charges 3 and 4, the two to run concurrently but six months of their aggregate to run consecutively to the 2 years on charge 1; a total in her case of 30 months’ imprisonment.  The one month difference between her case and Tsang’s on charges 3 and 4 is explained by a one month discount given by the judge to Tsang on account of health problems[7].

• Cheng, on charge 4, was sentenced to a mere 9 months’ imprisonment, particular credit having been given by the judge to his “long-term valuable contribution to the community and his generosity to charity.”

• Li, on charge 4, to 12 months’ imprisonment; and

• David Wong, on charge 4, to 6 months’ imprisonment.

The ambit of s 83B, Cap 221

10.We were particularly impressed by the judge’s careful and realistic analysis of the case as revealed by his well-presented Reasons for Verdict and we recognise that he must over the months of the trial have gleaned a good “feel” for the case but, with great respect, we nonetheless find it difficult to understand how, on the judge’s own analysis of the length, persistence and scale of deceit involved, sentences as low as all of these, individually and cumulatively, were justified; and we are surprised by the fact that none of the sentences was the subject of an application for review on the part of the Secretary for Justice.  In this regard, we were informed by Mr Marash SC for the respondent that consideration was given to an application for review of sentence in relation to Cheng, Li and Wong and that in the light of a variety of factors including the fact that none was involved in the lengthy deceit underlying charge 3, a decision was made not to apply for review.  The question of an application for review in relation to D1 and D2 was not considered probably, he said, because the overall sentence, though low, was not thought to be manifestly inadequate.  Despite that explanation, we remain surprised by the fact that none of the sentences was the subject of an application by the Secretary for Justice for review.

11.With the conviction in respect of charge 1 quashed, the sentences which remain in the cases of Tsang and Kwok are the sentences of 11 months (Tsang) and 12 months (Kwok) for the offences disclosed by charges 3 and 4, ordered to run concurrently; making a total in Tsang’s case of 11 months and in Kwok’s case of 12 months.

12.We received from Mr Bruce SC and his juniors, Mr Edwin Choy and Mr Felix Hoe, a most helpful written submission which addressed the principled approach which, in their contention, this Court should adopt in applying section 83B of the Ordinance.  They drew to our attention the model upon which s 83B was based, namely, s 4 of the Criminal Appeal Act 1968 (England and Wales) which had a subsection (3) – not reflected in s 83B – which provided that the court “shall not under this section pass any sentence such that the appellant’s sentence on the indictment as a whole will, in consequence of the appeal, be of greater severity than the sentence (taken as a whole) which was passed at the trial for all offences of which he was convicted on the indictment”.  This qualification does not appear in s 83B.  They also, very properly, brought to our attention the fact that where the Court, upon appeal against conviction, substitutes a conviction for an alternative offence, pursuant to the powers granted by s 83A, the Court is by sub-section (2) of that section expressly prohibited, in passing a sentence for the offence the conviction for which is substituted, from passing a sentence of greater severity than that passed in respect of the original conviction.  

13.Against this background and against the background of a discussion of the High Court of Australia in R H McL v The Queen [2000] 203 CLR 452, of a similar statutory provision as s 83B, in Victoria, it is – correctly in our view – conceded on behalf of these applicants, that this Court has a discretion to increase the individual or cumulative sentences for the remaining offences where section 83B applies.

14.The objective of the provision (s 83B) is to ensure that the quashing of a conviction for one or more offences preferred on a single indictment or charge sheet, does not result in a sentencing anomaly.  Whatever the number of offences on an indictment or charge sheet, a sentencing judge should always pass a sentence appropriate for each individual offence, and he should address totality only after that; he should not, for whatever reason, in relation to a single offence of several pass a sentence less than that warranted for that individual offence.  If he does pass a sentence less than that warranted for each individual offence, the consequence is that if the sentence passed for the other offence or offences is quashed, one is then left with a sentence for the remaining offence or offences (the remnant offences) which does not reflect the criminality disclosed.  Such a result does a disservice to sentencing objectives which are designed to serve the public interest.  There may be a number of reasons why, when faced with the task of sentencing for a series of offences, a sentencing judge at first instance falls into the error of passing a sentence for an individual offence which does not reflect its true criminality when viewed in isolation.  It may, for example, be that the judge has passed a heavier sentence for one of a series of offences, which sentence he thinks will in effect “swallow” or largely “swallow” the lesser sentences, thereby permitting himself to be insufficiently disciplined in his approach to the remaining sentences. Or he may approach the totality exercise in a manner which he should not; by deciding, for example, upon totality first and then tailoring or compressing the length of individual sentences to fit that totality.  Whatever the reason, a failure to pass a correct sentence for each offence is to err in principle and to create the possibility of the very problem created in the present case.  That is the mischief at which s 83B is directed.  The provision enables an appellate tribunal to ensure that the resulting anomaly is rectified.

15.It is, in that light, easy to understand why the power under s 83B encompasses a power to pass for the remaining offences, individually and cumulatively, sentences higher than those passed in respect of those offences in the court below.  That much is not in issue in this case.

16.What is less clear is whether, in exercising its powers under s 83B, the appellate tribunal may pass individual or cumulative sentences, which effect a sentence on the whole of the remnant charges which, to use the phraseology of s 4(3) of the 1968 Act, is of greater severity than the sentence, taken as a whole, which was passed at trial for all the offences of which the accused was (at that stage) convicted.

17.The fact that the Criminal Procedure Ordinance, in s 83B, does not adopt that wording, but otherwise follows the English model, might suggest, of itself, that there is in Hong Kong no such constraint.  However, there is a powerful counter-argument which is that the power to increase sentence under s 83B presents itself by reason of the mere happenstance that there was on the original indictment more than one offence of which the appellant has been convicted and that absent a power to increase sentence upon an appeal against conviction alone in respect of a single charge indictment, it would be odd if it were intended to treat s 83B as permitting, not just a heavier sentence for an individual remaining offence or offences, but a heavier overall result than was reflected by the orders of the court below.

18.The argument is best illustrated by a consideration of other sentencing provisions of the Ordinance :

(1)   Where there is an appeal against sentence, the Court is empowered to pass in substitution of the sentence or sentences passed in the court below another sentence, whether a lesser or a higher sentence : section 83I (3) – the result in the exercise of this power may clearly be a heavier overall sentence than in the court below;

(2)   where there is an application under s 81A of the Ordinance by the Secretary for Justice for a review of sentence and the Court of Appeal is of the opinion that the sentence passed in the court below was not authorised by law or was wrong in principle or was manifestly inadequate, it may quash the sentence passed below and substitute a higher sentence: s 81B – again, that applies not only to a sentence for an individual charge but to the overall result; and

(3)   where the Court of Appeal, upon an appeal against conviction, exercises its power under s 83A of the Ordinance to substitute a conviction for an alternative offence, again it may pass such sentence as is authorized by law for the substituted offence although, in this instance, expressly “not being a sentence of greater severity.”

19.But – and this is an important “but” – where there is an appeal against conviction alone on a single count indictment unaccompanied by an appeal against sentence – and assuming no concurrent application for review under s 81A – no power is conferred upon the Court of Appeal, in the event that the conviction appeal is unsuccessful, to address the question of sentence let alone to increase sentence.  And where there is an application for leave to appeal against conviction alone (unaccompanied, that is, by an application relating to sentence) in relation to convictions for several offences on the one indictment, again there is no power in the Court (absent a concurrent application for review) to address sentence, unless the appeal in relation to conviction is successful in part, leaving in place a conviction for one or more offences; in which case s 83B may be addressed.  It follows that s 83B only ever presents itself in the case of a multi-count charge sheet or indictment; yet never in the case of a single count indictment or charge sheet. 

20.It would seem odd in the context of this happenstance to treat the matter as at large under s 83B in the sense of assuming a power to pass such sentence in relation to the remaining counts or charges as would effect an overall sentence heavier than the overall sentence passed by the court below.  Thus to proceed, where there is no appeal against sentence, would be to assume a power akin to that conferred by s 83I and by s 81B[8] when there had been more than one count but no such power where there had only been one count.  A purposive construction is one which recognises that the mischief against which s 83B is designed is the danger that the judge below has, in sentencing for all the offences of which an accused (originally) stands convicted, adopted an inappropriate sentencing approach in respect of one or more of the individual offences, with the result that the remnant position, created by the setting aside of one or more charges upon appeal, does not reflect that which the overall justice of the new situation requires.  That is the point: that s 83B caters for a new situation, unlike the situations contemplated by ss 81B and 83I in which the appellate tribunal is – save in exceptional circumstances – in the same situation factually as was the court below.

21.We cannot at present understand why there is no express provision in s 83B along the lines of s 4(3) of the 1968 Act.  It may be that there are circumstances which we have not considered which would make sense of the apparently deliberate decision to abjure such an express provision; we gave scant notice to the parties about this particular issue and it would in the context of the history of this case have been unfair to postpone deliberation of sentence for further submissions in relation to this issue.  For present purposes, we will proceed on an assumption that the power to effect an increase which results in a greater overall sentence that imposed below is not intended.  If a case presents itself in future which rationalises a broader construction than we at present are prepared to grant, then so be it; but, for the present, we view the power under s 83B to be restricted to the extent we have indicated.

22.Our attention has been drawn to HKSAR v Ma Chiu Sing[9], a decision of this Court, differently constituted, in which the Court, purporting to exercise power under s 83B, substituted sentences for remnant offences – as we have labelled them in this judgment – which were individually higher than were imposed in the court below but the cumulative total of which was the same as that passed in the court below.  The Court concluded by saying that: “If original sentencing had been left to us, the overall sentence might well have been higher and the applicant can perhaps consider himself fortunate in this regard.”[10] By so saying, the Court seems to have taken itself as constrained from imposing an overall sentence higher than that imposed in court below, though this particular issue was not there the subject of analysis.

23.We note in regard to the issues which we have been addressing that in R H McL v The Queen[11] it was:

“33… submitted on behalf of the appellant that, either because, on its true construction, the provision does not authorise such a course, or, alternatively, as a matter of proper exercise of discretion, the Court of Appeal cannot, or should not, use s 569(1)[12] for the purpose of correcting what it regards as inadequacy in the sentences imposed by the sentencing judge. This, it is said, is a process which may be undertaken, in the event of a prosecution appeal against inadequacy, … or in the event of an appeal against severity by an offender … but it is not a proper exercise to be undertaken under s 569(1). The submission must also be rejected, for reasons given by Brennan J in relation to a similar submission in Ryan[13] :

‘It was submitted further that it would be unjust for the Full Court of its own motion to increase the sentence in respect of a conviction against which neither the appellant nor the Crown has appealed. The sentence affirmed or substituted by the Full Court must plainly be a sentence which, after an appeal against conviction on one or more counts is allowed, is supported by the conviction or convictions which stand; it cannot be the sentence in respect of the conviction or convictions which are quashed. Given a regular joinder of the counts, there is no injustice in increasing the sentence in respect of a conviction which stands if the increase is occasioned by the setting aside of the sentence which carried the appropriate penalty for conduct which constitutes either an element of the offence or a part of the series of offences for which the appellant stands convicted. Full justice is done to an appellant when the Full Court quashes a conviction on some count or part of the indictment on which he ought not to have been convicted; it goes beyond the requirements of justice to relieve him of the appropriate penalty for conduct for which he still stands convicted. The power to affirm the sentence to substitute another sentence under s 569(1) is not needed when there are appeals against that sentence under s 567A[14] or s 568[15]. Section 569(1) must have an operation additional to that for which those sections provide.’

“34. It was argued, that, as a matter of the proper exercise of discretion, the occasion to exercise the power given by s 569(1) would ordinarily arise only when there is some connection between the convictions which are left standing and the alleged offences in respect of which convictions have been quashed such as to warrant a conclusion that the quashing of some convictions requires an alteration of the sentence imposed in respect of others. That is so. Of course, in the absence of some connection, it would not have been proper to join a number of counts in the one indictment or presentment in the first place. As the analysis of Brennan J in Ryan demonstrates, and as the facts of the present case illustrates, sufficient connection to justify an exercise of the power under s 569(1) may be found in the principle of totality. Much may depend upon the manner in which the sentencing judge has applied the principle. If the judge has followed the course recommended in the cases of Mill[16] and Lomax[17] , and responded to considerations of totality, not by reducing individual sentences, but by fixing individually appropriate sentences and making them wholly or partly concurrent, then no occasion to invoke s 569(1) may arise. On the other hand, if, as in the present case, a sentencing judge has given effect to considerations of totality partly by imposing individual sentences which were less than they would otherwise have been, then that is the very kind of case may call for an exercise of the power to re-sentence under s 569(1).” (Emphasis in the Ryan citation is added)

24.We read that analysis as providing the rationale for permitting an increase in individual sentences “where the increase is occasioned by the setting aside” which is, as we have said, a different approach from the approach envisaged by s 83I or s 81B, where an increase is occasioned by a de novo appraisal based on the same scenario as that presented to the court below.

The argument

25.Mr Bruce urged us to the view that the judge below had not “compressed” downwards the individual sentences on charges 3 and 4 in order to ‘fit’ a pre-determined totality but had self-evidently imposed what he regarded as the correct individual sentences for those offences, regardless of the approach he had adopted in respect of charge 1.  It is therefore, he argued, not open to, or appropriate for, this Court to interfere with the sentences imposed on charges 3 and 4.  In support of his submission he pointed to the following passages in the Reasons for Sentence:

“61. Charge 3 also involves a serious offence. It involved a series of dishonest conduct by way of reply to the queries of Stock Exchange which continued to conceal the original dishonest act. Shareholders would continue to be deceived and suffered prejudice in their investment decision. The Stock Exchange was prejudiced in their performance of important public duty. The irresponsible replies dragged on for half a year. It ended up with a serious false representation that Grand Field was to sell off their interest in the project.

62.   The defrauding scheme was not designed to make any further gain.  It was deployed to cover up past illegal conduct.  It involved a series of fraudulent replies.  I am of the view that a starting point of 18 months is appropriate to reflect the nature of the offence and degree of culpability.  For the offence in this charge, I see little to distinguish the degree of culpability between D1 and D2.” 

26.In relation to charge 4, as well, the judge expressed his own view of the degree of culpability disclosed by that offence saying that it was a “scheme [which] involved a complicated design … obviously for the purpose of avoiding detection”, and that he was “of the view that the starting point of 18 months is appropriate for each of [D1 and D2].”

Analysis

27.It may well be that the judge did not “compress” the sentences on charges 3 and 4 with an eye on totality; but we cannot think that had the judge been faced with sentencing for only charges 3 and 4, he would have passed the sentences for those offences which he did, even on the lenient approach which, in our judgment, he took in relation to charge 1.  Put another way, it seemed entirely obvious to us that he viewed charges 3 and 4 as mere adjuncts to the one charge upon which he had imposed a substantially larger sentence and must, therefore, have been influenced in the sentences which he imposed on charges 3 and 4 by the fact of a substantially larger sentence in respect of charge 1.  The fact that the conviction upon charge 1 has now been set aside, does not mean that the offences disclosed by charges 3 and 4 are to be viewed in a vacuum, divorced from the conduct which those offences were designed to cover up.  This is not to sentence for the conviction now set aside, but to envisage the approach which the judge should, applying proper sentencing considerations, have taken had there been no charge 1 or no conviction on charge 1.

28.The fact of the matter is that the judge did not impose appropriate individual sentences in respect of charges 3 and 4 and in the new situation with which this Court was faced by reason of the fact that the conviction on charge 1 now stands quashed, section 83B was, in our judgment, squarely engaged and we were satisfied that it was appropriate – indeed, incumbent upon this Court – to interfere with the sentences imposed for those remaining offences.

29.The fact that we were not to sentence for the offence disclosed by charge 1, does not mean that we were to ignore the motivation for the offence at which charge 3 was directed, namely, to hide from the Stock Exchange and shareholders illicit conduct of a serious nature.  More particularly, however, charge 3 reflected months of bare-faced lies to the Stock Exchange and then the creation of a bogus sale in the hope of taking the heat off that investigation.  It is a serious matter which in our judgment warranted in the case of Tsang a starting point in relation to charge 3 of 5 years’ imprisonment and a starting point in relation to charge 4 of 3 years’ imprisonment; whereas in the case of Kwok we consider that a starting point of 4 years’ imprisonment was warranted in respect of charge 3 and one of 2 years 6 months in respect of charge 4; the differences between the two appellants to reflect the fact that Tsang was no doubt the prime mover and Kwok, though active in the deceit, was no doubt acting in accordance with his wishes.

30.As for discounts, we would have afforded a discount on account of the positive good character of Tsang and Kwok of 4 months in respect of each charge.  The judge was in our opinion wrong to discount from sentence on account of delay.  That delay did not lie at the hands of the prosecutor; it was a consequence of the nature of the offences and the fact that the appellants fought the case.  Although we have sympathy for Tsang’s various ailments – diabetes, eye problems, hypertension and depressed moods and anxiety as a result of the investigation, the proceedings and conviction – they are of a type that can be controlled whilst in custody and no worse than the ailments of many a person subject to imprisonment.  We would not have made a deduction in their regard.  On this approach, we would have expected the judge to impose sentences in respect of Tsang of 4 years 8 months and 2 years 8 months in respect of charges 3 and 4 respectively, ordering them to run concurrently; and in respect of Kwok, sentences of 3 years 8 months and 2 years 2 months on charges 3 and 4 respectively, ordering them to run concurrently: a total in his case of 4 years 8 months and in hers of 3 years 8 months.

31.Those totals exceed, in the case of each of these applicants, the total sentence imposed for all the offences of which they were convicted after trial.  Given the approach we have taken to the application of s 83B, we did not adopt the starting points which we would have adopted had the matter come before us on a review of sentence or on an appeal against sentence.  Since we were of the view that the deception underlying charge 3 was as serious as that reflected by charge 1 and given the constraints which we treated as being inherent in s 83B, it was appropriate in our judgment to substitute for the sentences imposed on charge 3 no more, but also no less, than that imposed by the judge, namely, 26 months in the case of Tsang and 24 months in the case of Kwok.  As for charge 4, since but for the constraint which we have applied, we would in respect of each appellant have passed sentences in excess of 26 months for that charge, we determined on 26 and 24 months again for charge 4; subject to the matters to which we next come.

32.There has been a lengthy delay in delivery of our judgment in the appeal against conviction, a delay that will have caused stress to the appellants and which we regret and for which reason we considered it appropriate to afford a discount from the sentences which otherwise we would have substituted.

33.It was suggested that the invocation of s 83B in this case should carry with it a discount to recognise the fact that there was no review application and that the invocation was at the Court’s own motion, so that the sudden prospect (and actuality) of a sentence increase, if justified in law, constitutes the unexpected dashing of a hope of an earlier release.

34.We took both factors into account; although, given the extraordinarily low sentence on charge 3, on its own and in comparison with the sentence on charge 1, as well as the inevitability that charge 1 would fall away on appeal, thereby bringing those low sentences into sharp focus, it is the delay in issuing our judgment that accounts for almost all of the reduction we accorded.  We decided to deduct 4 months imprisonment from the 26 and 24 month terms which we would otherwise have imposed.

The result

35.In exercise of our power under s 83B of the Ordinance, we substituted for the sentences passed in the court below in respect of charges 3 and 4, the following sentences :

(1) In the case of Tsang, a sentence on each of charges 3 and 4 of 22 months’ imprisonment, to run concurrently, a total of 22 months; and

(2) In the case of Kwok, a sentence on each charge of 20 months’ imprisonment, to run concurrently, making a total of 20 months.

Mr Daniel Marash, SC (counsel on fiat) and Mr Anthony Chau, SPP of Department of Justice, for the Respondent

Mr Andrew Bruce, SC and Mr Felix C Y Hoe, instructed by Wat & Co., for D1 & D2

[1] Para 54 Reasons for Sentence

[2] Charge 1 alleged a conspiracy between February and September 2002 to defraud Grand Field, its shareholders and investors and the Stock Exchange by dishonestly representing that there was a genuine intention to acquire an interest in a business to develop and construct a gas pipe line in Chongqing with a view to causing the shareholders to approve the issue and allotment of consideration shares; the Stock Exchange to grant the listing of and permission to deal in those shares; and Grand Field to issue those shares.  The conduct behind that allegation is addressed under the heading “The first phase” at paras 5 to 19 of our earlier judgment.

[3] Charge 3 alleged a conspiracy between March and August 2003 to defraud the shareholders of Grand Field as well as the Stock Exchange by dishonestly concealing the fact that there had been no genuine acquisition of a business to develop and construct a gas pipeline and by falsely representing that there had been a genuine disposal of that business.  The background to the commission of that offence is addressed under the heading “The second phase” at paragraphs 23 to 48 of our earlier judgment; and the circumstances of its commission in the analysis of charge 4 in paragraphs 125 to 163 of that judgment.

[4] Reasons for Sentence paras 61 and 62

[5] Charge 4 asserted that between March and July 2003 knowing or having reasonable grounds to believe that $32 million directly or indirectly represented proceeds of an indictable offence, these applicants and others conspired to deal with that property.  The circumstances of that offence are addressed in paragraphs 37 to 48 of our earlier judgment; an offence constituted, to put it broadly, by the money flow back to Upbest.

[6] Reasons for Sentence para 66

[7] Diabetes, hypertension, and kidney and eye problems.

[8] Section 81B addresses the powers of the Court upon an application under s 81A.

[9] [2004] 2 HKLRD 974

[10] ibid at 982

[11] (2000) 203 CLR 452 at 463

[12] Crimes Act 1958 (Vict): “ If it appears to the Court of Appeal that the appellant, though not properly convicted on some count or part of the indictment … has been properly convicted on some other count or part of the indictment … the Court may either affirm the sentence passed on the appellant at the trial or pass a sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the count or part of the indictment … on which the Court considers that the appellant has been properly convicted.”

[13] (1982) 149 CLR 1 at 25

[14] A prosecution appeal against inadequacy

[15] An appeal against severity, by an offender

[16] (1988) 166 CLR 59 at 63, referred to at paras 15 and 16 of McL.

[17] [1998] 1 VR 551, referred to at para 17 of McL.