HKSAR v. Chu Chick Kei and Another

CACC 362/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 362 OF 2011

(ON APPEAL FROM HIGH COURT CRIMINAL CASE NO 320/2010

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Line J (giving the Reasons for Judgment of the Court):

1.The 1^st applicant (D2 at trial) seeks leave to appeal out of time sentences totalling 10 years and 6 months’ imprisonment, passed in his absence after he had absconded at the close of the prosecution’s case.

2.The 2^nd applicant (D3 at trial) seeks leave to appeal against sentences totalling 9 years and 9 months’ imprisonment following her pleas of guilty, entered at the close of a twenty day trial after counsel for the prosecution had made his closing speech to the jury.

3.The trial took place before Wright J and we intend to borrow extensively from what he said when passing sentence.  Before doing so we would remark that no real issue is taken with either his summary of the facts or his assessment of the seriousness of the case.  A major thrust of this application is a complaint that he failed sufficiently to distinguish between the roles of the three defendants, resulting in sentences for the applicants that are said to be manifestly excessive.

4.The judge summarised the proceedings in this way:

Each of the 1^st and 2^nd accused has been found guilty after trial of two counts of conspiracy to defraud and eight counts of making a false statement by a company officer.  The 1^st accused has been found guilty, in addition, of one count of conspiracy to use false instruments, whilst the 2^nd accused has been found guilty of one count of dealing with property known or believed to represent the proceeds of an indictable offence.

Each of the 1^st and 2^nd accused absconded at the end of the prosecution case.

The 3^rd accused has been found guilty on her own plea of the same two counts of conspiracy to defraud as well as eight alternative counts of conspiracy with the 1^st and 2^nd accused to publish a false statement by a company officer.  She pleaded guilty to this offence rather than the substantive offence as she contended she was not an officer of the company.  The prosecution accepted those pleas to the alternative counts.

She also pleaded guilty to the further conspiracy to use false instruments.

5.The orders he made were these:

The 1^st accused is to undergo imprisonment on Count 1 for 10 years; on each of counts 2, 4, 6, 8, 10, 12, 14 and 16, for 5 years; on Count 18, for 10 years; and on Count 19, for 5 years.  Two years of the period of imprisonment on Count 18 is to be served consecutively to that on Count 1.  Each of the sentences on the other counts is to be served concurrently with one another and with the sentences on Counts 1 and 18.  The aggregate sentence is 12 years’ imprisonment.

The 2^nd accused is to undergo imprisonment on Count 1 for 9 years; on each of Counts 2, 4, 6, 8, 10, 12, 14 and 16, for 5 years; on Count 18 for 9 years; and on Count 20 for 4 years. Eighteen months of the period of imprisonment on Count 18 is to be served consecutively to that on Count 1.  Each of the sentences on the other counts is to be served concurrently with one another and with the sentences on Counts 1 and 18.  The aggregate sentence is 10 years 6 months’ imprisonment.

The 3^rd accused is to undergo imprisonment on Count 1 for 8 years and 3 months; on each of counts 3, 5, 7, 9, 11, 13, 15 and 17 for 4 years 7 months; on Count 18 for 8 years 3 months; and on Count 19 for 4 years 7 months.  Eighteen months of the period of imprisonment on Count 18 is to be served consecutively to that on Count 1.  Each of the sentences on the other counts is to be served concurrently with one another and with the sentences on Counts 1 and 18.  The aggregate sentence is 9 years and 9 months’ imprisonment.

6.He summarised the case thus:

The case against the convicted accused was that each was involved in different ways with a number of events which revolved around an application for the listing of Tungda Innovative Lighting Holdings Limited which had a number of other companies in its group on the GEM board of the Hong Kong Stock Exchange during 2002 and, subsequently, in 2003/2004 on the Main Board.

There were certain stipulated requirements in order to secure the GEM Board listing.  Tungda was unable to comply with some of those requirements.  Sales figures to customers, in particular to a customer in the Netherlands, a company called Vezalux, were artificially inflated, specifically alleging that vast quantities of a newly invented product, an induction lamp, had been sold to it.

The artificially inflated figures were supplied to the stock exchange and, through it, the Securities and Futures Commission.  They were also published in the prospectus relating to the listing and thus were published to potential shareholders.  That gave rise to the 1^st count of conspiracy to defraud, Count 1.

One of the requirements of a company listed on the GEM Board was to publish quarterly reports each financial year.  That Tungda did but, in doing so, again it reflected turnover which had been artificially inflated by the inclusion of non‑existent sales in order to reflect a greater profitability than in fact existed.  Again, specific reference was made to the substantial sales and very high profitability of induction lamps. 

That was done on eight occasions during the financial years 2003 and 2004.  That gave rise to the offences of officers of the company publishing a false statement, the even‑numbered counts from 2 to 16, and to the alternative counts against the 3^rd accused of conspiracy to publish a false statement, the odd‑numbered counts from 3 to 17.

During that same two‑year period after its listing on the GEM Board, Tungda sought a listing on the Main Board of the Stock Exchange.  There were requirements concerning profitability and, again, Tungda falsified its turnover figures by creating invoices and other documentation reflecting non‑existent sales, once again of the induction lamps.  Part of the falsified figures upon which Tungda relied also included the sales to Vezalux in the financial year 2002 as, for the purposes of this listing, the preceding three financial years were taken into account.  In this sense, there was some overlap or duplication.

There were further misrepresentations made to the stock exchange and others, including a misrepresentation as to the number of induction lamps sold in contrast to the value of those sales, in an attempt to secure the listing which would not have been secured had they not been made.  This gives rise to the second conspiracy to defraud, Count 18.

Specific written confirmations from various customers of Tungda as to the genuineness, value and extent of the trading transactions between them and Tungda were required by the companies advising or representing Tungda in its application.  Three separate exercises were conducted by three separate entities ‑ the sponsors of the listing, Tungda’s own auditors, Deloittes, and a second firm of auditors, Nelson Wheeler, appointed to express opinions on the concerns expressed by Deloittes ‑ to secure what were referred to as letters of confirmation from those customers.

Those exercises were subverted with the fabricated letters intended to be tendered to those three professional bodies in order to deflect their inquiries.  The letters either were complete fabrications and had not been supplied by the customer concerned or, at the least, the turnover reflected in those letters was inflated and did not reflect genuine trading.  That gave rise to the count relating to conspiracy to use a false instrument, Count 19.

Accountants involved with the listing exercises and audit would expect to see an inflow of money into Tungda’s various accounts equivalent to the sales claimed by it.  This created a problem for Tungda as, because the sales were non‑existent, it could hardly expect third‑party customers to make payments.  As a consequence, the 2^nd accused, who was the brother of the 1^st accused, took money from his personal account and paid that, in cash, into Tungda’s accounts in order to create the impression of cash flow consistent with the claimed sales.

Shortly thereafter, within days if not hours, amounts approximately equivalent to the sums paid into Tungda’s accounts were paid back into the account of the 2^nd accused to be ready for the next batch of false transactions.  It is these repayments to the 2^nd accused which gave rise to the money‑laundering count, Count 20.

7.He analysed the conduct of the accused and arrived at starting points for sentence in this way:

There is no doubt that these were ambitious frauds on a grand scale.  Although the charges were correct in the sense of reflecting separate and independent offences, the conduct of the accused, in reality, extended from November 2001 to August 2004.  It was persistent, dishonest conduct of the highest order.

There was no evidence which quantifies the total loss to others occasioned by the frauds but there is illustrative evidence from two members of the public who were investors in Tungda, each of whom related how he or she sustained losses amounting to, between them, some $6.3 million.  It was their testimony that each had relied upon the misrepresentations concerning Tungda’s turnover, its new product introduction and its projected growth based on those factors when deciding to make the investments.

The factor which has even more grave consequences than the loss to individual investors from the public, which I do not seek to minimise, is the effect on the stock market as a whole of the listing of a company based upon false materials but for which it would not otherwise have been listed, whether that listing be on the GEM Board or on the Main Board.

Hong Kong enjoys a reputation as an international financial centre, a part of which is due to the regulatory regime which prevails.  The revelation of such a listing based upon fraud, apparently successfully designed to deceive the regulators, is suggestive of fallibility which may well shake investor confidence in the stock market generally.

There was a carefully planned exercise to secure the listing of Tungda on the GEM Board based upon material which the convicted accused knew to be false.  That carefully planned exercise was then extended by falsehood being piled upon falsehood in an attempt, abortive as it happened, to secure a Main Board listing.  There was no inadvertence involved.

The conduct of the three accused throughout their involvement demonstrates a cynical, calculated and persistent course of conduct designed to deceive the regulators in the exercise of their duty which necessitated deceiving Tungda’s own auditors as well as others advising and assisting it with the listing, as well as present and future shareholders of Tungda and, of course, its creditors.

It is quite clear that the accused, particularly in the context of the second conspiracy to defraud, were prepared to go to any lengths to secure a listing.  A glaring example is the fact that the 1^st accused created the impression that he was prepared to go along with Tungda’s own auditor’s suggestion of employing independent auditors to conduct a forensic examination of issues about which its own auditors were suspicious: yet, when Tungda engaged a second firm of auditors, the 1^st accused proscribed the extent of their investigation to such an extent that even the second firm of auditors appreciated that their mandate would not permit them to address the issues which had been raised.

This was a profoundly serious course of conduct embarked upon by the accused.  In my judgment, the two conspiracies to defraud come very close to a worst‑case situation which would be deserving of the maximum sentence prescribed by law.  I determine a starting point for these two offences of 10 years’ imprisonment.

In doing so, I have had regard to the decision of the Court of Appeal in Attorney General v Dominic Cheung Kai Man in which it was indicated that for serious fraud not quite up to level of worst offences, a starting point in the region of 10 years would be expected for a single offence after conviction following trial; the decision of the Court of Appeal for England and Wales in Cushnie & Clough which approved a starting point of 10 years, the statutory maximum, for a fraud involving “massive deception of the London Stock Exchange”; and HKSAR v Fu Chu Kan and Others, similarly a 10‑year starting point in respect of each of two frauds remarkably similar to the case of which these accused are convicted was approved by the Court of Appeal which went on to observe that, at least in regard to the prime mover of the frauds, “had they been a year or two longer, we would not have upset them”.

Insofar as the offences of publishing, or conspiracy to publish, a false statement are concerned, I note the substantial period of imprisonment provided as the maximum sentence which is an indicator of the seriousness with which the legislature regards offences of this nature. That is understandable and is well illustrated in this matter by the evidence of two members of the public that they relied upon material published by Tungda and statements from Tungda, or publicity based on it, on which to base their investment decisions.

The publication was false, to the knowledge of the accused, in probably the single most material matter of interest to a potential investor, the profitability of the company.  It would have been perfectly plain to the accused that even though their plan primarily may have been to deceive the stock exchange, they would inevitably also deceive any other person relying on the material published by Tungda.  I judge 5 years’ imprisonment to be the appropriate starting point for these offences.

The 1^st and 3^rd accused have been convicted of the offence of conspiracy to use false instruments which were the false letters of the confirmation which were intended to be relied upon by the sponsors and two firms of auditors and were designed to mislead them as to the genuineness of trading transactions.  It would be fallacious to suggest that this offence is less serious than any of the others due to the fact that there was no public element in the use of the false instruments.

They were tendered to the three organisations concerned specifically to mislead them as to the genuineness of sales which otherwise, in one form or another, they would inevitably have invited to the regulators or other authorities which would have acted in the interests of members of the public.  Similarly, I regard 5 years’ imprisonment as the appropriate starting point.

Insofar as the money‑laundering charge only against the 2^nd accused is concerned, the evidence is that $44,437,900 passed through his bank account between 6 February and 20 August 2002.  It has to be said that this is not a run‑of‑the‑mill money‑laundering exercise where different substantial sums of cash are received from a third party into a bank account and then passed onto another third party.

Although the deposits into the 2^nd accused’s account amounted to over $44 million, the conclusion of the expert witness called to testify in regard to these counts was that the transactions took place in order to conceal the falsification of the turnover figures by purporting to be payments for genuine sales and that the money used to create that false impression was then paid back into the 2^nd accused’s account in order to be available for the next set of false payments.

Thus, although the deposits amounted to over 44 million, the actual amount of cash that was used to create those deposits was substantially less.  Even so, the conduct satisfied the essential elements of the offence.  In my judgment, a sentence lower than that that would normally be imposed for money‑laundering of the more common kind involving this sum of money would be justified in these circumstances.  I take a starting point of 4 years’ imprisonment.

8.He dealt with the roles of the accused in this way:

I turn now to the involvement of each of the three accused.  I pause to note that each of them has no previous criminal convictions although, in the circumstances where there are sophisticated frauds carried on over an extended period, that is a matter of little moment.  In regard to the 1^st and 2^nd accused, I have considered such as appears in their antecedent statements.  There is nothing in the personal circumstances of any of the accused which justifies a reduction in sentence.

The 1^st and 2^nd accused and their father, who was not involved in these proceedings, between them held the entire issued share capital of a company known as Tungda Industrial Limited, with the 1st accused holding one more share than the other two.  That company held 100 per cent of the shares in another company known as Standard Exceed Company Limited which, in turn, held 71.28 per cent of the shares in Tungda.  In effect, therefore, the three of them controlled Tungda.  The 1st accused was the chairman and a director of Tungda, whilst the 2^nd accused was the vice‑chairman and a director of it.

It appears that when Tungda was listed on the GEM Board, that listing raised some $64 million. There was evidence that, on 5 September 2003, Standard Exceed sold 177,600,000 shares in Tungda for which a net amount of $50,722,362.80 standing to the credit of its account with the brokers, Kingsway, was withdrawn on the authority of a withdrawal slip signed by the 1^st accused.

There was no evidence as to the dissemination of those moneys thereafter, although it would be naïve to suggest that it was not the 1^st and 2^nd accused who benefited, particularly in the light of the assertion of the 3^rd accused concerning the fact that she paid over to Tungda the profits she apparently made on the sale of her shares.

Insofar as the 1^st accused is concerned, there was evidence that he was in charge of all the decision‑making processes that involved Tungda.  He was the chairman of the group.  From the evidence, it was clear that he made a point of attending audit committee meetings of the company, even though his right to attend was queried.  This demonstrated his eagerness to maintain control over events and to ensure that he was always up to date with developments.  He needed to be, of course, in order to ensure the smooth running of the frauds.

There was evidence that when the discovery was made that one of the companies to which Tungda was supposed to have sold millions of dollars of goods, SARL Koran in France, had actually ceased trading altogether, the 1^st accused promptly made a very rapid trip to France in order to have a purported meeting with that company and returned brandishing some form of agency agreement.

There was evidence that when she had finished printing out false bills of lading and invoices, the 3^rd accused took them into the 1^st accused’s office where she held a meeting with the 1^st and 2^nd accused, as well as the 1^st accused’s son who, also, was not involved in these proceedings.  There was evidence that even though others may have spoken out at audit committee and Board of Directors meetings more than the 1^st accused, it was his voice that actually counted.  As I have just noted, it was he who withdrew the 50‑plus million dollars from the brokers who sold Standard Exceed’s shares in Tungda.

I am satisfied from the evidence that I have heard that it would be proper for me to conclude that it was he who was the prime mover behind the two listing frauds which, between them, inevitably led to the commission of each of the other offences.  There is no justification for reducing any of the sentences in respect of the 1st accused below the starting point I have indicated.

The 2^nd accused was the vice‑chairman and a director of Tungda.  There is not as much evidence concerning his involvement in the planning of the conspiracies.  Indeed, there is evidence that he played little role in the actual meetings relating to either of the listings, it being suggested that he was mainly concerned with manufacturing and sales activities in the mainland.

However, what evidence there is shows that he was deeply involved in the execution of the frauds.  He was present at the meetings in the office of the 1st accused immediately following upon the preparation of false bills of lading and invoices by the 3^rd accused; he played a very active role in the creation of the false impression of payments for non‑existent sales through the bank account in his name, the evidence being that he as well as the 3^rd accused gave explicit instructions to staff members concerning banking procedures to be followed.  That was a vital part of the scheme.

Be that as it may, I am prepared to accept that his role was not so extensive as that of the 1^st accused in regard to the two conspiracies to defraud, but there is no difference in his role in regard to the publication of false accounts or use of false instruments.  I regard a starting point of 9 years on Counts 1 and 18 as appropriate in his case.

The 3^rd accused was employed by Tungda as sales manager specifically in charge of its sales to overseas customers.  There was a representation in the prospectus relating to the GEM Board listing that she was part of the senior management of Tungda.  In mitigation, she seeks to distance herself from that position by saying that, in reality, she was the personal assistant or secretary to the 1^st and 2^nd accused and the title of sales manager had been conferred on her only to create a false impression of the prosperity of the company.

Despite that submission now, the fact is that witnesses were challenged as to the basis of their assertions during their evidence‑in‑chief that she had been secretary to those two accused. Furthermore, there was evidence that she exercised exclusive control over the records, the fake records, of course, of the overseas sales.  If indeed she merely had loaned her name to the title, it is yet a further illustration of her willingness to participate in ongoing dishonesty designed to mislead outsiders.

She was granted an option over more than 10.5 million shares which she duly exercised.  She then sold those shares on the same day, making a profit of a little over $2 million.  I am told in mitigation that she paid over these moneys to Tungda at the request or insistence of the 1^st accused.  I have been referred in this connection to a statement from the stockbroker who handled the transaction contained in the committal bundle.  I see nothing in that statement that supports this submission. Even if it were to be true, whilst it may remove the element of personal gain, it reinforces the depth of her complicity.

The evidence against the 3^rd accused as it emerged from the witnesses during the trial was, in a word, overwhelming.  It demonstrated that she was deeply involved in the day‑to‑day management and running of the offices and affairs of Tungda.  It demonstrated that she was deeply involved in the money‑laundering exercise conducted by the 2^nd accused by instructing staff to carry out banking activities.  It demonstrated that she was deeply involved in attempting to subvert the exercises involving the letters of confirmation for it was she who, the documents and testimony of witnesses show, was responsible for their completion and, in two instances, despatch and to follow up on them.

It demonstrated that so deep was her involvement that it was she who was producing false bills of lading and false invoices and possibly other documents in order to support the non‑existent sales.  It demonstrated that, after producing these documents, she then had meetings with the 1^st and 2^nd accused and others.  The evidence was that it was she who ventured the extraordinary explanation to the auditors that the bills of lading were not, after all, bills of lading but were simply proof of delivery.

In mitigation, she says that she acted as she did at the direction of what was carefully described as ‘the Chu family’. It was specifically said on her behalf that she completed the false documentation at their behest.  That may be.  I have already indicated that I regard the 1^st accused as the kingpin of these frauds but the evidence clearly shows that she willingly and enthusiastically loaned herself to them.  There is no suggestion in the evidence that she displayed the slightest reservations or reluctance.

It was suggested on her behalf that much of the evidence against her had not been vigorously challenged and the point was made particularly that there had been no challenge concerning the typing of the bills of lading.  That is hardly surprising given the evidence of the prosecution witnesses relating to her having been seen to be carrying out that production and of the evidence that she provided the explanation that these documents were not, after all, bills of lading.

One aspect of cross‑examination deserves mention.  It was specifically suggested, on behalf of the 3^rd accused, to each of the two witnesses who had travelled from overseas to testify in this matter that they were lying in their evidence, Mr Bootsma when he said that the Tungda documents did not properly reflect the purchases made by him.  That does not sit easily with the submissions made in mitigation.

The role of the 3^rd accused was at least equal to that of the 2^nd accused.  In regard to Count 19, there is no distinction to be drawn between her conduct and that of the 1^st accused.

9.He dealt with totality thus:

That leaves the question of whether the sentences should be served consecutively or concurrently.  It is self‑evident that the counts relating to the publishing or conspiracy to publish the false statements, the use of the false instruments and the money‑laundering charge were all inextricably interwoven with one or other of the two conspiracies to defraud.  They were part and parcel of the execution of those frauds and were necessary in order to both further and conceal them.  Each of those sentences should be served concurrently with one another and with the sentences on the two conspiracies to defraud charges.

Counts 1 and 18, however, represented two separate and distinct frauds carried out at two entirely separate times.  The first related to a listing on the GEM Board.  Once that was complete, a separate and distinct decision was taken to attempt to perpetrate a further fraud, this time to secure the listing on the Main Board.  In principle, those sentences should be served consecutively to one another.

That raises the issue of totality.  In my judgment, in respect of the 1st accused, a period of 2 years of the sentence on Count 18 should be ordered to be served consecutively to that on Count 1, whilst in respect of the 2^nd and 3^rd accused, 18 months of the sentence on Count 18 should be ordered to be served consecutively to the sentence on Count 1.

10.The 1^st applicant seeks leave to appeal his sentence out of time.  He is out of time because he ran away to avoid justice. He also seeks leave to put before us an affirmation explaining why he absconded as well as two further affirmations speaking to his good character and expressing opinions that it could only have been under the influence of his brother that he absconded, as well as six testimonial letters.

11.The applications are based upon an assertion that the 1^st applicant was forced by his brother to flee.

12.It is an assertion that we have no hesitation in rejecting.  The proposed evidential basis for it appears in the 1^st applicant's affirmation atparagraph 18:

“On Saturday, 20 of August 2011, my brother asked me to go with him to Shenzhen to deal with some urgent matters in the company's factory. When we arrived in Shenzhen, he asked me to abscond with him to Thailand. I did not agree. Then, there were a few guys with huge body build who came and surrounded me. My brother told me that if I did not go with him, he would harm me. So I reluctantly went with my brother to Thailand and then to Malaysia."

13.We regard this as bald and unconvincing narrative, completely undermined by the simple consideration that if the 1^st applicant truly did not want to flee he had ample opportunity to avoid it when in contact with those various authorities inevitably met by the international traveller.

14.Paragraph 18 continued in this way:

"So I reluctantly went with my brother to Thailand and then to Malaysia. My brother took all my travel documents and money. In the early part of our stay there, my brother had been closely watching me. Later I had an opportunity to escape and I did."

15.The 1^st applicant did not return to Hong Kong until 22 February 2012.  We regard the brief explanation for his five month absence as being completely inadequate.  The complete absence of any detail as to how he “escaped” without travel documents or money (which he said his brother had taken from him) belies his allegation that his brother had forced him to flee Hong Kong and had kept him a virtual prisoner in Thailand and Malaysia.  Again we have no hesitation rejecting the reasons he has proffered for the fact that he stayed away from Hong Kong for 5 months.

16.Cases where defendants flee during the course of their trial are happily rare.  The law has been settled since the case of R v Jones (No 1) that the trial may continue in their absence.  In R v Jones (No 2), after the absconding Mr Jones was extradited he sought leave to appeal out of time and leave to put before the court explanations as to why he fled following threats as well as material designed to demonstrate a defence justifying a new trial.

17.Roskill LJ said this:

"to grant this application at this stage would, in the view of this court, be to put a premium on prisoners jumping bail; it may even have the effect of encouraging others to do so.  It might also have as a side‑effect, increasing the reluctance of the court in a very long trial to grant bail lest the applicants conduct be repeated by others.  To put a premium on jumping bail is something which this court is not for one moment prepared to countenance.  This application is entirely without merit, notwithstanding the skill with which he has been advanced.  There is no ground whatsoever for granting this extension of time.  The applicant has brought this entirely on his own head, and he must now take the consequences.  The application therefore is refused." (emphasis supplied).

18.In our judgment, those remarks apply equally to this case.  The fact that the 1^st applicant surrendered himself has no impact on the application of the policy that lies behind them.  It is to be noted that in Jones the policy shut out material designed to provide a defence.  That rationale must apply with even greater force where what is before the court are pleas in mitigation based on blaming an accomplice for crimes which had been denied and based on assertions of good character.  We regard the attempt to put the testimonials before us, in the circumstances, as completely hopeless.

19.The 1^st applicant is unable to advance any good reason for the granting of leave in respect of either of his applications.  We do not say that in every case where a defendant absconds, leave will automatically be refused.  We do say that it would take exceptionally strong grounds to justify letting such a defendant back in to the criminal process, a process he had chosen to reject by flight.  We have no hesitation in saying that no such strong grounds exist in the case of the 1^st applicant by reference to the alleged circumstances surrounding his flight or by reference to submissions made concerning the merits of his proposed appeal against sentence.  It is convenient that we express our views in regard to the merits of the proposed appeal against sentence when dealing with the case of the 1^st applicant below.

20.Accordingly, we refuse the 1^st applicant leave to put the evidence before us.  We do not regard his proposed evidence as being credible, the remainder of the material was available at the time of trial and there is no reasonable explanation for the failure to adduce it there.  We also refuse him leave to appeal against sentence out of time.

21.We agree with the judge’s view that the defendants were guilty of ambitious frauds on a grand scale and that they had each embarked upon a profoundly serious course of conduct.  We agree with his judgment that the two main conspiracies to defraud came very close to a worst case situation which would be deserving of the maximum sentence prescribed by law, namely 14 years.  The starting points of 10 years’ imprisonment for these offences are unassailable.

22.Likewise, we regard the overlapping of the sentences on the two conspiracies as being beyond criticism.

23.We would take the opportunity to remark that the use of modern word processing technology has given those minded to commit large‑scale fraud a ready means to mislead.  It is conduct that the criminal courts are bound to meet with rigour.  If criminals use the technology to create such wholesale falsehood, they must expect their sentences to be severe.  Their conduct undermines safe reliance upon documentary evidence and makes it a weapon in their hands for use against the public and those whose job it is to protect the public.

24.We now come to the 2^nd applicant. We have not set out the judge’s reasons for arriving at the small discount which he gave to the 2^nd applicant following her very late pleas of guilty, as there is no criticism made in this appeal of the amount.

25.Thus, leaving aside the discount for the pleas, the question to be faced is whether the difference between the 12 year sentence of imprisonment for the 1^st defendant and the 10 ½ year sentences for these applicants fails to reflect their respective involvement to an extent that it would justify this court intervening to reduce their sentences.

26.Nothing persuades us that the finding of the judge to the effect that the applicants were enthusiastic and committed players in the frauds is wrong.  He was well aware of what the evidence given in the trial revealed of their roles and of the claims made on behalf of the 2^nd applicant in mitigation.  The distinction he made between the roles of all three was both fair and rational.  These were crimes committed over a period of time.  They required industry and each worked at it.  The 18 month distinction between the 1^st defendant as the top level prime mover and the two applicants below him represent a discount of 12.5 %. In our view any greater discount would have led to sentences of insufficient length for the gravity of the crimes committed by the applicants.  It must not be forgotten that all were involved in the same criminal endeavour and committed offences together.  It is all too easy to join in enthusiastically when the team does well and the crime flourishes but then seek to blame the captain for having played at all after the game is lost.

27.The claims made on behalf of the applicants are advanced for those who had earned themselves no sympathy by their conduct since their fraud was detected.  They stood shoulder to shoulder contesting the allegations against them in the face of overwhelming evidence, the 2^nd applicant crumbling at the very last, when any realistic hope of a result other than conviction was dead, and the 1^st defendant running away with his brother, who remains at large avoiding his sentence.  It goes without saying that any criminal court is likely to listen with more attention to those who seek to mitigate crimes which they immediately admit, rather than contesting their guilt.

28.We would point out that it is little solace to the victims of such frauds that one of its main perpetrators stood to put less in her pocket than her accomplices.  It is the fraudulent promotion of the company to the damage of the public that is the gravamen of the offences, and not the destination of any dishonest profits.

29.We would also point out that this is not one of those cases where the prime mover could have accomplished the crimes alone.  The role played by the 2^nd applicant was an indispensable one.

30.As regards the 2^nd applicant, we reject the submissions that her sentences are manifestly excessive or so out of step with that of her co‑accused that her sentence should be reduced.  Her application for leave to appeal her sentences is refused.

31.As regards the 1^st applicant, we say that nothing in his proposed grounds of appeal against sentence justify granting him leave to appeal his sentences out of time.

Mr Man Tak Ho ADPP, of the Department of Justice, for the respondent

Mr James H M McGowan, instructed by Boase Cohen & Collins, for the 1^st applicant

Mr Paul Leung, instructed by Director of Legal Aid, for the 2^nd applicant