HKSAR v. Hau Wing Chi

CACC 270/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 270 OF 2012

(ON APPEAL FROM DCCC 606 OF 2011)

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J U D G M E N T

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Hon Line J (giving the judgment of the court):

1.This is an appeal against sentences totalling 19 months’ imprisonment imposed upon the appellant by District Judge Douglas Yau on 18 June 2012, following her pleas of guilty to 3 charges in September 2011. Lunn J (as he then was) granted leave to appeal on the 26 September 2012.

2.Charges 1 and 3, alleged that in the period of October 2009 until 20 May 2010 she had conspired with Albert Shum to defraud finance companies and their employees by making false representations in respect of the purchase of motor vehicles.  In consequence, loans of $654,034 and $700,000 were obtained from the respective finance companies.  Charge 5, alleged that in the period between 22 February and 16 March 2010 she had conspired with Albert Shum to pervert the course of public justice by making false representations to the police, as to whom it was that was the driver of a motor vehicle, in the course of police enquiries into an offence of speeding.

3.The judge summarised the facts and sentenced in this way:

“2. The defendant was befriended by a Shum Yan Shing in September 2008. They started dating soon afterwards and became intimate. Some time in May 2009, Shum told the defendant that he was involved in an accident whilst in Shanghai and needed money to settle the hospital bills. He asked the defendant to raise money, the defendant did as told but Shum said that the money was not enough and kept asking for more. The defendant kept borrowing money.

3. When the defendant had exhausted her sources of funds, Shum taught her to take the personal information of a client of the law firm that the defendant was working in and to use the information to support her application for a loan for the purchase of 2 vehicles. The defendant followed Shum’s instructions and was eventually successful in buying a Porsche and a BMW motor vehicle, each with a hire and purchase agreement. In the process of buying the vehicles, the defendant falsified documents as well as forged the signature of the said client on various documents.

4. The defendant was given to understand that the original plan according to Shum was to sell the vehicles at a profit and they will only have to make a few repayments for the loans. This however did not work out and the defendant was forced to borrow more money to try to make the repayments for both vehicles.

5. One day, the defendant by chance ran into Shum driving a car with the registration plate of one of the 2 vehicles that she had bought with the false information. The defendant called Shum on the phone immediately but Shum denied it was he who the defendant had seen driving the car. From then on, the defendant became suspicious and eventually asked Shum to hand over the 2 vehicles to her. Shum plainly denied having possession of those vehicles and asked the defendant what she was talking about. It was then that the defendant knew she had been played and decided to surrender to the Police, resulting in her and Shum being charged in two separate cases.

6. Indirectly related to charge 1 and 2, charge 3 involved Shum and the defendant agreeing to not disclose the real identity of the driver of one of the purchased vehicle to the Police as a result of a speeding incident the vehicle was involved in.

7. The defendant eventually pleaded guilty to her own case. She was then called as a prosecution witness in the trial of Shum for the same charges. Shum was convicted based on the defendant’s evidence given in that case.

Sentence

Charge 1 and 3

19. Bearing in mind the seriousness of the offences, but also noting that the defendant had been influenced by her blind affection for Shum, I will adopt a starting point of 2 years and 9 months’ imprisonment, reducing it to 22 months upon the defendant’s plea of guilty.

20. I will further reduce this sentence by 6 months for the assistance the defendant had rendered the Police and the prosecution of Shum. The defendant is therefore sentenced to 16 months’ imprisonment for each of charge 1 and 3.

Charge 5

21. Again, I find that the defendant was influenced by Shum in the commission of this offence and I will adopt a slightly lower starting point than that of Shum. I adopt a starting point of 1 year and 9 months’ imprisonment, reducing it to 14 months’ imprisonment upon the defendant’s plea of guilty. I will further reduce this sentence by 4 months for the assistance the defendant rendered. The defendant is therefore sentenced to 10 months’ imprisonment for charge 5.

Totality

22. The defendant is 22 years old, likely to lose her job and will most certainly be made the subject of civil litigation. I have borne this in mind when applying the totality principle. I order that the sentence in charge 1 and 3 to be served concurrently, and 3 months of the sentence in charge 5 to be served consecutively, the rest concurrently.

23. The defendant is therefore sentenced to a total of 19 months’ imprisonment.”

4.We have been told that Shum was sentenced to a total of 3 ½ years’ imprisonment, the judge having taken a starting point of three years’ imprisonment in respect of the conspiracies, ordering the terms to run concurrently, and that in respect of the conspiracy to pervert the course of public justice a starting point of two years, ordering that six months of that sentence should run consecutively to the terms of three years.

5.The appellant before Mr Justice Lunn argued two things.  Firstly, she said that the police would not have been able to prosecute Shum without her assistance.  Secondly, she said that the judge was wrong to take a starting point in respect of charges 1 and 3 of three years’ imprisonment for Mr Shum and one of 33 months’ imprisonment in her case.  It was said that was too small a difference to mark the difference between the ‘mastermind’ and the ‘blind follower’.

6.Today before us, she adopted those points and stressed that she was deceived by a bad guy.  She was manipulated.  She was a scapegoat and that in relation to the fifth charge she had no driving licence herself and was not a professional driver. 

7.It was the case that Lunn J, granting leave, questioned the length of the sentence in relation to the conspiracy to pervert the course of public justice, whilst cautioning the appellant that even if the sentence was too long it may not benefit her at the end of the day due to the extent that the sentence was overlapped with the sentences for the two conspiracies.

8.The discount given to the appellant for her pleas of guilty and for the help she provided in giving evidence against Shum amounted to just over 50 % and she could have hoped for no greater discount.

9.In our view the starting point for Shum of three years’ imprisonment for the conspiracies to defraud involving loans in excess of $1.3 million cannot be criticized.

10.However, we do consider the starting point taken in relation to the conspiracy to pervert the course of public justice to be too high.

11.The nub of the criminality was that the appellant named to the police an acquaintance as a driver of the BMW which had been obtained in the conspiracy the subject of charge 3.  Because she knew the person that she named she was able to intercept the letter which was sent in due course by the police to her and trick her into signing the form accepting that she had been the driver.

12.We can see from the reasons for sentence in the case of Shum that the judge had been influenced by the case of HKSAR v Yuen Sun Wing [2010] 3 HKLRD 145.  That was a case involving a fairly sophisticated scheme whereby professional drivers paid for others to stand in their place when prosecuted for driving offences.  We do not think the reference was helpful, this being a case of one person seeking to avoid the single penalty for speeding.  The element of tricking another and exposing them to the penalty was an unattractive aggravation.  However, in our judgment the starting point should have been no greater than one year.

13.Accordingly, applying a 50 % discount, we would reduce the sentence on charge 5 from 10 months to 6 months’ imprisonment.  However, we can see no reason to interfere with the order that three months of this sentence run consecutively to the sentences on charges 1 and 3.

14.Did the judge distinguish sufficiently between the appellant and Shum in setting their respective starting points?  We are sympathetic to the view that the difference of three months was at best a modest reflection of their roles.  It was undoubtedly the case that the appellant was badly misled by a rogue.  She was only 19 at the time.  He was 30. On the other hand, the appellant involved herself in serious crime, stealing confidential information from her solicitor employers for use in the conspiracies to defraud.  There was an element of a breach of trust, even though the direct victim of the crime was not the employer and even though her position in the firm was a lowly one.  In those circumstances it is hard to suggest that a total of 19 months’ imprisonment was excessive for the whole conduct or that the sentences of 16 months’ imprisonment for the conspiracies were excessive.

15.We would suggest, with respect, that if the difference in starting point had been six months it would have better reflected the respective roles of the appellant and Shum.  It would have resulted, after the discount, in concurrent sentences of 15 months’ imprisonment.  However, we would also suggest that the overlapping of the separate crime concerning perverting the course of public justice would then have been more appropriately undertaken by ordering its sentence to run four months consecutively to those terms rather than three months consecutively The end result would therefore be the same, even if the original starting point was modified as we suggested, the total sentence would remain 19 months’ imprisonment.  That is the same that the judge achieved.  So in the circumstances we do not interfere with the sentences of 16 months.

16.Accordingly, we cannot say that the sentences are manifestly excessive and we can only allow this appeal by reducing the sentence on charge 5 as we have indicated from 10 months to 6 months, with three months of it running consecutively to the other sentences.  The resulting sentence is still one of 19 months’ imprisonment.

Ms Winnie Lam Tak-wing SPP, of the Department of Justice, for the respondent

The appellant appeared in person