HKSAR v. Yuan Gui Ying

CAC C 427/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 427 OF 2011

(ON APPEAL FROM DCCC NO. 260 OF 2010)

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BETWEEN

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J U D G M E N T

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Hon Stock VP (giving judgment of the Court):

Introduction

1.On 3 October 2011 the applicant was convicted in the District Court by Deputy Judge Casewell on one charge of conspiracy to deal with property known or believed to represent the proceeds of an indictable offence and a second charge of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap 455.  She was sentenced upon each charge to 6 years 3 months’ imprisonment, those terms ordered to run concurrently.

2.This is her application for leave to appeal those convictions and sentences.

3.On 25 June 2013, we dismissed the application in relation to the convictions and said that we would provide reasons for that decision.  We now do so.  We reserved judgment in relation to sentence, and now deliver that judgment.

The prosecution evidence

4.The applicant is a citizen of Canada, to which she emigrated from Mainland China in 1995.  In 1987 she married Huang Chao-hong in China.  There are two children of the family: Yi-long born in 1987 and Samantha born in 1997.  Three other family members feature in the case: the applicant’s mother, Wang Mei-zhen; the applicant’s sister, Yuan Gui-qin; and the applicant’s sister-in-law (the wife of the applicant’s brother), Mdm Chen Miao-chan.  None of these individuals has at any material time lived in Hong Kong.

5.The husband acquired permanent residence in Canada in 2000 but met a violent death in November 2007, when he was murdered outside his home in Vancouver.

6.The prosecution case in relation to the first charge spans the period February 1999 to December 2009 during which time there existed 18 bank accounts in Hong Kong to which the applicant had regular access.  Of the 18 accounts, six were in her name; two were joint accounts with Samantha; three in the name of her son; three in the name of her sister; one in the name of her mother; and one in her husband’s name.  During that period a total, in Hong Kong dollar terms, of $104,606,390 was held in the accounts.  In round figures, $78 million was held in Hong Kong dollars; HK$12.7 million in US dollars; HK$13.3 million in Canadian dollars; HK$187,590 in Australian dollars; and HK$261,025 in Japanese yen.  Within the sum of HK$104 million, there is a degree of duplication in that it embraces transfers between accounts.  If treated as one account, the sum injected was slightly under $63 million.  Of the monies deposited into the accounts, most, by far, was deposited (and withdrawn) in cash; and the applicant herself was, in most instances, the person who made the deposits and effected the withdrawals.  There were frequent interbank transfers throughout the charge period, often by cashier order.

7.The substantial majority of the individual cash deposits were large, namely over HK$200,000.  In April 2003 alone, HK$6 million was deposited in cash; in September 2003 HK$5.2 million; in December 2003 HK$2.2million; in January 2004, HK$4.2million; all at a time when the parties resided in Canada, with no admissible evidence as to the source of the funds.

8.On a number of occasions, substantial amounts of cash were deposited by the applicant on the same day to separate accounts.  So, for example, on 22 April 2003 she deposited, in cash, $1 million into an account held in her mother’s name and $1 million into an account held in the name of her sister.  On 4 December 2003, she deposited $150,000 into each of those accounts and on the same day separate stacks of $500,000 each into those accounts.  In January 2004, she deposited $800,000 into each of those accounts but in four separate lots.  There was similar conduct in February 2008, March 2008, and on three separate days in May 2008.

9.Some money (about HK$16 million) was withdrawn for the purchase of a property in Hong Kong.  That was money held in the account of Well Concord Ltd in the name of which company the property was purchased.  The directors and shareholders of the company were the applicant’s mother and sister but the beneficial owners of the property were the applicant and her husband.  Some of the money from the accounts was sent to Canada to accounts in the name of the applicant and her husband.

10.On account mandate forms, the applicant described herself as a housewife.  No admissible or credible evidence was led to show that she had a substantial legitimate source of income such as might account for anything like the sums held in the accounts.    

11.This suffices to convey the flavour of the evidence for the prosecution in relation to Charge 1 which alleged that between 11 February 1999 and 10 December 2009 in Hong Kong, the applicant conspired with her sister, her mother, her son, her husband and others to use the 18 bank accounts to deal with property, namely, a total sum of HK$104,861,190 knowing or having reasonable grounds to believe that the property in whole or in part directly or indirectly represented proceeds of an indictable offence.

12.The prosecution contention was that the funds running into and through these accounts over a substantial period was vast; a large proportion of the deposits were in cash; the transactions carried odd features such as splitting the deposits, and the use of cashier orders; there was no reliable evidence as to any legitimate source for these substantial sums; the applicant and her family had no connection with Hong Kong; and that, looked at in the round, these facts, known to the applicant, constituted reasonable grounds to believe that the property in question was the proceeds of an indictable offence.

13.In January and July 2008, the applicant rented two safe deposit boxes and upon her arrest in 2009 the keys to the boxes were in her possession and $7.5 million in cash was found in the boxes.  This evidence formed the basis of the second charge which alleged that she dealt with that sum knowing or having reasonable grounds to believe the cash to represent the proceeds of an indictable offence.

The defence case

14.The applicant did not herself testify.  She called an expert witness, the purpose of whose evidence was to qualify the expert testimony called on behalf of the prosecution as to the evidential hallmarks of money laundering in the case; but since the judge drew conclusions independently of their respective opinions and since none of the grounds of appeal turn on the judge’s approach to their testimony, it is unnecessary to refer to the effect of their evidence.

15.A lay witness was called on her behalf.  She is the applicant’s sister-in-law.  She is a Mainland resident who married the applicant’s brother in 1988.  Her evidence was that her husband traded in a family business in Guangdong and that the applicant was part owner of that business which, she said, generated very substantial profits.  The purpose of her evidence was to suggest that the funds in the bank accounts were the proceeds of this family business and that since it was difficult to move money from the Mainland to Canada, the applicant opened these accounts into which cash deposits were made by the applicant, her sister and her mother.  She also gave evidence as to the cash in safe deposit boxes which were the subject of the second charge, and as to the purpose for which the applicant put cash there.

16.This witness also produced something in the order of 1,000 pages of documentation which she said she had found amongst her mother-in-law’s belongings, purportedly in support of the vast profits said by her to have been made by the family business.  The authenticity of these documents was not admitted and none was proved by its maker.  There were business licences of companies but none showed the applicant as having any interest; nor for that matter did they show the husband as the proprietor.  Bank statements were produced which related to these companies but nothing to show their profits.  No company ledger was produced and no profit and loss accounts; no accounts at all.

17.Almost all the testimony of this witness was inadmissible hearsay as to the role of the applicant in these companies, the source of the funds in the bank accounts and the deposit boxes, and the reason for having bank accounts in Hong Kong in the first place.  Yet despite the objection of counsel for the prosecution, the evidence was received and delivered at length.  So, for example, we see the following exchange at an early stage of examination-in-chief by leading counsel then appearing on behalf of the applicant:

“Q. Do you know why they have bank accounts in Hong Kong?

MR SOUYAVE: That must be hearsay, really. We are really - - isn’t that all hearsay from this witness?

COURT: Well, they could have expressed a reason why they had to the witness, I suppose, to give evidence …

MR SOUYAVE: But it’s still hearsay.

MR WONG: No, it is not.

MR SOUYAVE: I tell you I’ve got a …

COURT: It’s not adduced as evidence of the proof of its contents, just that it was said by them, I suppose. I don’t know what the evidence is going to be.

MR WONG: Yes, of course she relied on what is said in her presence.

COURT: Yes.

MR WONG: And that is evidence of their mind.

COURT: What they said anyhow.

Q. Did you hear what the …

COURT:     It’s admissible.  It’s just a question of weight.”

18.This is all quite extraordinary.  Leading counsel’s suggestion that he was not seeking to establish the truth of what was allegedly said by the applicant and her husband to the witness does not bear elementary scrutiny; and the judge’s support of the contention that this evidence was admissible is, with respect, equally bewildering.  And so it went on at length: hearsay testimony about how the applicant brought money into Hong Kong from the Mainland; the circumstances in which she came to purchase property in Canada and the purpose for which the property was bought; the reason why the property in Hong Kong was not purchased in the applicant’s name; why the applicant opened safe deposit boxes in Hong Kong; the source of the cash placed in the safe deposit boxes.  That it was all adduced to establish the truth of what the witness had been told – that the money had a legitimate source; that there was nothing untoward in the opening of 18 bank accounts; that there was an innocent reason for placing a substantial amount of cash in the safe deposit boxes – could not be more obvious. Yet it was all solemnly led and received, an exercise in futility which ought not to have been allowed.  In the event and for reasons we need not traverse, the judge rejected the evidence because he considered it not credible; whereas he ought to have rejected almost all of it because almost all of it was inadmissible.

19.The defence contention at trial was that there was credible evidence (from the defence witness) about the legitimate origin of the cash deposits; that all the account holders of the 18 bank accounts were close relatives rather than distant third parties; that the cash deposits remained in the accounts for lengthy periods; and that none of the banks had filed suspicious transaction reports: in short, that these facts were contrary to indicia of money laundering.

The findings

20.Having rejected the evidence of the sister-in-law, the judge examined the evidence which was left.  He itemised the obvious outstanding facts, which we have already particularised and amongst the matters which he emphasised as carrying weight with him was not only the very substantial amounts of money, but its “placement … in a jurisdiction separate from where [the account holders] reside”; the absence of acceptable evidence as to the origin of funds; the absence of a documentary trail; and the fact of large and frequent deposits of cash.  He pointed to the double deposits of substantial sums on individual dates and he said that: “these amounts are excessive for individuals and not commensurate with any discernible legitimate form of business”.  He posed a central question to which there was, in his opinion, but one answer:

“One might ask what kind of enterprise has these kinds of cash reserves and banks them in this kind of way. This is clearly the hallmark of an enterprise that is not legitimate in any shape or form.”

21.There was, in his judgment, clear evidence of a conspiracy and reasonable grounds to believe that the funds, in whole or in part, directly or indirectly, represented the proceeds of an indictable offence.

Charge 1: the grounds of appeal

22.The first complaint is that the judge failed properly to distinguish between the existence of reasonable grounds to suspect and reasonable grounds to believe.

23.This complaint stems from a passage in the Reasons for Verdict in which the judge said, referring to the manner in which the prosecution put its case: “So there were clear, reasonable grounds for suspecting its origin, and anyone dealing with the monies must have dealt with them in that state of knowledge or belief.”

24.It is said that this reveals an approach which elides suspicion and belief.  That there should in such cases be no such elision is important, but we are satisfied that a reading of the Reasons for Verdict as a whole demonstrates that the judge did not confuse the two or apply the wrong test.  This becomes finally evident from his conclusion that:

“In this case the cash deposits are so large and frequent that without there being any evidence of their origin the only conclusion that can be drawn by a reasonable person with this available information is that they represent the proceeds of an indictable offence. It seems to me there can be no other explanation.”

25.Though not developed in oral argument, the written argument asserted that the judge failed to address the question whether there were reasonable grounds to believe that the property in question was the proceeds of improper conduct in some general sense rather than of an indictable offence.  The question of impropriety in the sense of avoiding exchange control regulations as a motive for the existence of these bank accounts was fully canvassed by evidence which was disbelieved by the judge but, in any event, that contention rested for its viability on the supposition that the funds were the proceeds of a legitimate business and the judge provided cogent reasoning for finding that that could not, on the evidence, conceivably be so.

26.Next, it was said that whereas the judge held all the funds in the bank accounts to be the proceeds of illicit activity, there was evidence of at least some legitimate business.  The answer to this is severalfold: first, there was no admissible or credible evidence of legitimate business to which the applicant and her husband were party; second, even if there had been such evidence, proof that a small part of the funds was attributable to some legitimate business would not undermine the propriety of a conviction based upon a valid finding that the rest was not.

27.A final ground advanced, in relation to both convictions, was that section 25(1) of the Ordinance is inconsistent with the principle of legal certainty.  This is an argument which has recently been rejected by this Court, differently constituted, in HKSAR v Pang Hung Fai CACC 34 of 2012, unreported, 31 May 2013; for which reason, the argument was not developed before us and we reject the complaint, though Mr McCoy SC for the applicant reserves the right to take the point further.

28.For these reasons, we denied the applicant leave to appeal against conviction in relation to Charge 1.

Charge 2

29.Charge 2 alleged that on or about 10 December 2009, the applicant used two safe deposit boxes with Hang Seng Bank Ltd to deal with HK$7. 5 million knowing or having reasonable grounds to believe the property in whole or in part directly or indirectly represented the proceeds of an indictable offence.

30.The applicant was arrested upon entry into Hong Kong from the Mainland on 8 December 2009.  Upon her arrest, amongst the items found upon her were keys to several safe deposit boxes, including the two identified in the charge.  The evidence established that she rented these boxes on 15 January 2008 and 15 July 2008 respectively.  In one of the boxes was HK$2.5million in HK$1000 notes; and in the other was HK$5 million, also in HK$1000 notes.

31.Part of the inadmissible evidence of the sister-in-law was that these funds were the proceeds of insurance policies on the husband’s life, which the applicant decided to turn into cash and place in safe deposit boxes so as to hide the funds lest her deceased husband’s mistress sought to lay her hands on family assets.  The judge rejected this testimony, not on the basis that it was wholly inadmissible – which it was – but because he disbelieved the witness.  And he added that there was no documentary evidence to support the suggestion that the cash inside the safe deposit boxes was the proceeds of this insurance policy.

32.The judge’s comment that there was no documentary evidence in support of the insurance proceeds assertion led to a notice of motion on behalf of the applicant by which she seeks leave under s 83V of the Criminal Procedure Ordinance, Cap 221 to adduce fresh evidence.

33.The notice of motion seeks leave to adduce the affirmation of a partner of the solicitors’ firm acting for the applicant, and the exhibits thereto.  It is said to be necessary or expedient in the interests of justice to admit as fresh evidence two of the exhibits:

(1)   a schedule of documents containing certified copies of periodic applications in 2008 and 2009 by the applicant to the Hang Seng Bank for access to the safe deposit boxes; and

(2)   an affirmation of Mr Justin-Luc Ricard of Industrial Alliance Insurance and Financial Services Inc of Quebec with exhibits thereto.

34.The exhibits to his affirmation are :

(1)   an application by the applicant dated 3 November 2000 for insurance on the life of her husband in the sum of CAD 1 million for the benefit of her son and her daughter, with the applicant as trustee for her daughter.

(2)   A letter dated 18 March 2008 from the insurance company to the applicant acknowledging “the required documents to process this claim” and stating that cheques in final payment of the claim are enclosed; and

(3)   three cheques: one in favour of the son in the sum of CAD506,241.10; the second in the same sum in favour of the applicant “ in trust for [the daughter]”; and the third in favour of the applicant in the sum of the CAD11,712.44 in partial repayment of a premium.

35.The purpose of the application is to provide the evidence which the judge said was lacking, namely, documentary support for the assertion that the cash in the safe deposit boxes was the proceeds of this insurance policy.

36.Section 83V (1) and (2) of the Criminal Procedure Ordinance, Cap 221 provides as follows :

“(1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice-

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court of Appeal whether or not he was called in those proceedings; and

(c) subject to subsection (3), receive the evidence, if tendered, of any witness.

(2) Without prejudice to subsection (1), where evidence is tendered to the Court of Appeal thereunder the Court of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if-

(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b) it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.”

37.We were satisfied that the conditions precedent requiring admission under subsection (2) were not met.  That, primarily (though not solely), was because the explanation provided by the applicant, in a supporting affirmation, for the failure to adduce the evidence in the proceedings below was untrue.

38.Her account in that affirmation was that she had told her original legal team that the cash in the safe deposit boxes was the proceeds of the insurance policy and that she had told them that she had not kept the funds in a Canadian bank because she was depressed and paranoid, particularly worried that her late husband’s mistress might come to know about the insurance money and press for it or some of it.  “At that time,” she said, “the legal team told me that they will consider how to use these documents and how to present the facts of my case through the evidence of defence witnesses.”  She said that she thought her team would submit the documents to the trial court and was shocked to read in the Reasons for Verdict that no documentary evidence had been produced.

39.These assertions, disconcerting if true, were met by affirmations in reply from members of the previous legal team including an affirmation from junior counsel.  Counsel’s evidence was that in a conference with leading counsel, the applicant did not suggest that the cash in the deposit boxes was from the insurance compensation and was unable to provide information about the source of that cash.  However shortly after that consultation with leading counsel, the applicant and junior counsel and a solicitor’s clerk held another conference and:

“When the applicant was asked again about HKD7. 5 million cash and why it had been placed inside deposit boxes, the applicant asked if it was alright to say that the cash was insurance compensation from her husband’s death. I then told her it was not what we say but where the cash in fact had come from. ….. I asked if any documents can be provided to us to show that the money in fact came from insurance compensation. Instead of answering my question, the applicant asked if further investigation would be conducted by police and/or prosecution if any documents were provided. I answered her that the prosecution and/or the police have every right to do so. Not only would they check the authenticity of the document, they may also do a tracing exercise on the insurance compensation. And it would be beneficial to the applicant if their investigation proves her right. The applicant then expressed since it was so long time ago, she had lost all the documents and strongly expressed that she wanted no further investigation. She said she could not recall the name of the insurer… . I also suggested that Canadian bank statements might assist to show the deposit of the fund. However, she maintained that she did not want further investigation and no such documents would be provided. … The applicant also told us the reason the money was placed in the deposit boxes instead of bank account was to avoid her late husband’s mistress knowledge about it for she fears that the mistress will ask for a share. … . ”

40.As matters stood after the filing of the affirmations, there was a clear issue of fact between the applicant on the one hand and those legal advisers who had acted for her at trial on the other.  But at the hearing of the appeal Mr McCoy proceeded on the basis that the evidence of counsel would not be challenged and that the Court might proceed on the basis that it was accurate.

41.It follows that there existed no reasonable explanation for the failure to adduce the evidence in the proceedings below.

42.That left the question whether nonetheless it was necessary or expedient in the interests of justice to receive the evidence: subsection (1) of Section 83V.

43.These were, in our judgment, hardly circumstances which justified admission of the evidence under that alternative limb:

(1)   the applicant had lied to this Court about the reason for the non-production of the insurance documents in the court below;

(2)   the evidence from junior counsel, the production of which was necessitated by the applicant’s s 83V application, cast considerable doubt upon the credibility of the applicant’s assertion that the cash in the deposit boxes was the proceeds of the insurance policy.  Quite apart from the fact that the applicant had asked the strange question whether it was “alright” to say that the proceeds came from an insurance policy, she had firmly baulked at the suggestion of a tracing exercise which might support her contention;

(3)   there remains no admissible evidence which traces the cash in the safe deposit boxes to the payments from the insurance company, evidence which should be readily available if it exists – and there is no explanation for the non-provision of this evidence;

(4)   there is no explanation why two boxes, one of which was opened before the compensation was paid, the other months after, were needed for the simple purpose alleged or why they had regularly to be accessed;

(5)   the fact of periodic access to each of the boxes on its face sits uncomfortably with the account provided by the applicant; and 

(6)   the sums were not due to the applicant in any event, but to her children, neither of whom live in Hong Kong.

44.Since the ground of appeal in relation to the second charge rests upon the application to admit the fresh evidence, and since that application failed, we dismissed the application for leave to appeal the conviction on the second charge.

Sentence

45.The applicant was aged in her late 30s to mid-40s during the period of the conspiracy; and was a person without previous convictions.

46.The judge noted, as against her, the very significant sum to which the first charge related (just under $63 million); the large number of bank accounts; the large number of transactions within those accounts spanning, he said, “over a ten-year period”; the international dimension of the case; and the proactive involvement of the applicant in the money transactions.

47.In mitigation of her culpability, he noted the fact that part of the delay in bringing the matter on for trial was due to the fault of the prosecution in that the first date of trial had to be adjourned because of the late production by the prosecution of its expert’s report; that the offences did not illustrate great sophistication; that there was evidence that the applicant had for some time suffered from depression; that the son, aged 24 years at the time of sentence, and then residing in the Mainland, unfortunately suffered serious congenital vascular malformation on the left side of his brain; that the daughter, who resided in Canada, was aged but 14 years; and that the circumstances as a whole called for the exercise of sympathy.

48.The judge concluded, as for a starting point, that “any sentence in this case would … lie at the maximum jurisdiction of this Court” since “the sums are very large, the defendant has benefited herself, there is an international element and the defendant was deeply involved in the majority of these transactions.  It would appear to me,” he said, “that I must adopt a starting point, certainly on the conspiracy, which is at the maximum of my jurisdiction, which is 7 years’ imprisonment.”

49.He thought, nonetheless, that there were mitigating factors which justified some reduction, namely, some delay in bringing the matter to trial, not attributable to her own actions; the likelihood that the applicant had been subject to pressure from the husband; and the difficulties suffered by her (occasioned by her depression, the death of her husband, the illness of her son and her separation from her daughter).  “So,” he said, “I shall, as I say, adopt an overall starting point… of 7 years’ imprisonment in respect of both charges”; reduced that by two months on account of delay, and by a further seven months on account of the other mitigating factors, resulting in a final sentence of six years three months’ imprisonment as “my overall sentence”.  He said: “What I shall do simply is to impose that sentence on each charge to be served concurrently.”  That is what he did: he imposed a term of six years three months’ imprisonment on each charge, ordered those terms to run concurrently, thus making a total of six years three months’ imprisonment.

50.There is revealed immediately an error in principle.  It is trite that a judge faced with the task of sentencing for more than one offence must, as his first step, impose an appropriate sentence in respect of each offence; whereas what the judge did was to impose the same sentence for the money laundering of $7.5 million as for the money laundering of $63 million.  That cannot be right, as Mr Leung for the respondent correctly conceded.

51.It is then said that the judge furthered erred in adopting an “overall” starting point of seven years for the two offences together.  We are puzzled by the judge’s reference to “an overall starting point … in respect of both charges.”  That too suggests an error in approach for it is not appropriate to talk of an overall starting point for several charges.  The correct approach is a sentence for each offence which is appropriate to the offence itself and in the determination of that appropriate sentence, a starting point for that single offence must be taken with adjustments then made for aggravating and mitigating features; and then, and only then, an appropriate totality.

52.However, we note that the judge had earlier said in terms in relation to the conspiracy offence alone that the appropriate starting point stood at the maximum of his jurisdiction, namely, seven years’ imprisonment.  We are satisfied, in the event, that he did not mean that but for the second charge he would have taken a lower starting point for the conspiracy offence.

53.It is argued that the starting point as well as the resulting sentence for the conspiracy offence was manifestly excessive and the following matters are particularly prayed in aid:

(1)   from the sum of approximately $63 million introduced to and circulating within the 18 bank accounts, there should be deducted a sum of about $5 million which is the amount of money placed in and through the accounts between July 2001 when an account was opened in the husband’s name and 4 April 2003 when the first accounts in the names of the sister and mother were opened.  The point is made that between those dates (July 2001 to April 2003) no party other than the applicant and her husband was, on the evidence, engaged in the money laundering alleged by the first charge and since, as a matter of law, a conspiracy charge cannot survive as between husband and wife alone, that period and those sums should be discounted; for which reason also, the length of the conspiratorial conduct in which the applicant was engaged was less than that for which she was sentenced;

(2)  there is no evidence of the nature of the predicate offence, so that no assumption should be made that it was of particular seriousness;

(3)  it should be inferred that at all material times the applicant acted under the direction and pressure of her husband; an inference to be drawn from the nature of things as well as from the fact that after the husband’s death only about $7 million was deposited in cash into various of the accounts;

(4)  it should be assumed that some of the funds came from legitimate business; and

(5)  the applicant’s depression and the circumstances of her children are such, it is said, as to warrant special consideration.

54.We remind ourselves that the test in the appellate context is whether the sentence imposed in the court below was manifestly excessive or wrong in principle.  We are satisfied that the approach to the sentence in relation to the second charge was wrong in principle and that the sentence for that offence was manifestly excessive.  We consider that in all the circumstances presented to us a sentence of three years’ imprisonment for that offence in isolation is appropriate.

55.In relation to the first charge, it is difficult conscientiously to conclude, even with the suggested lower figure of about $58 million injected into 17 separate bank accounts (we ignore the husband’s account), over a period of six years that a starting point of seven years’ imprisonment is manifestly excessive or that the resulting sentence of six years three months inadequately reflects such mitigation as has been advanced.  

56.As for the mitigation advanced, some assumption can properly be made – and was made by the trial judge – in the applicant’s favour, of influence exerted by the husband but it must be remembered that there was no evidence from the applicant or from anyone on her behalf to suggest a particularly pliable personality and in the face of the apparently proactive and lengthy participation of the applicant, which continued after her husband’s death, the weight to be attached to the “pressure” aspect is limited.  The medical reports about the applicant could barely have been more sparse.

57.Mr McCoy realistically conceded that a sentence of six years three months in respect of Charge 1 is difficult to contest given the considerable sums involved over a long period.  So the gravamen of the case upon appeal was a plea in misericordiam.  In relation to the applicant’s personal circumstances, the judge deducted a total of 7 month’s imprisonment and we are not prepared to say that that was an inadequate recognition of those circumstances.  

58.We will not therefore disturb the sentence imposed in relation to the first charge.

59.In the result, we grant the applicant leave to appeal sentence, treat the hearing of the application as the appeal, and allow the appeal to the extent only that the sentence for the second offence is set aside and substituted by a sentence of three years’ imprisonment.  This is ordered to run concurrently with the sentence of six years three months’ imprisonment on the first charge, which is undisturbed, making a total of six years three months’ imprisonment.  This corrects the error in relation to the second charge, but leaves the resulting total unchanged.

Mr David Leung, DDPP (Ag.) of Department of Justice, for the Respondent

Mr Gerard McCoy, SC & Ms Maggie Wong, instructed by Chong & Partners, for the Applicant