Read the full judgment text of CACV 445/2013 on BabelCite. This Court of Appeal judgment was delivered on 13 June 2014 before Stock VP, Barma JA and Pang J.
Criminal law – conspiracy to defraud – letters of credit fraud – sentencing – application for leave to appeal against sentence – Applicant was director of Wing Fai Construction Limited and executive director, Deputy Chairman and CFO of parent company China Rich Holdings – eleven fictitious L/Cs issued by four banks over five months between September 2001 and January 2002 in respect of non-existent perishable construction materials – total sum approximately HK$31.238 million – banks secured by charges over fixed deposits and China Rich guarantee (net assets exceeding HK$600 million) – all sums repaid before fraud discovered so banks suffered no actual loss and faced no realistic risk of loss – fraud reported to police in June 2004 but applicant not charged until December 2009 – pre-charging prosecutorial delay of approximately five years – two unsuccessful stay applications and unsuccessful judicial review – applicant pleaded guilty on 21 October 2013 to eleven charges of conspiracy to defraud – sentenced on 4 December 2013 to 21 months' imprisonment on each charge concurrent – starting point three years; one-third discount for guilty plea; further three months for positive good character and charitable works – whether starting point manifestly excessive or wrong in principle such that suspended sentence should have been imposed – held, no: starting point of three years not manifestly excessive; although absence of realistic risk of economic loss is a relevant factor it is not determinative, and the factual matrix including the applicant's senior instructing role, the systematic frauds on four banks on 11 occasions, the repeated stark dishonesty, and the damage to faith and trust in the trade financing system justified the starting point – whether three-month discount for positive good character inadequate where same discount was given to co-defendants merely for clear records – held, no error: one-third guilty plea discount normally covers clear record, and positive good character yielded a total discount exceeding one-third – whether trial judge erred in 'cancelling out' the four-month discount he was otherwise minded to give for prosecutorial delay by reason of delay caused by applicant's own stay and judicial review applications – held, yes: prosecution's earlier delay, during which applicant caused no delay, was independent and could not be negated by later delay attributable to the applicant's unsuccessful applications – whether late change of trial judge caused real prejudice – held, no: change was regrettable but unavoidable and added nothing to successful ground – appeal allowed to limited extent; sentences of 21 months set aside and substituted with 17 months on each charge, to run concurrently, giving a total sentence of 17 months' imprisonment – sentencing math: starting point 36 months per offence; one-third discount for guilty plea; further 3 months for positive good character; on appeal further 4 months restored for prosecutorial delay, resulting in 17 months per offence concurrent.
Legal issues: Whether starting point of 3 years for L/C conspiracy to defraud was manifestly excessive · Adequacy of 3-month discount for positive good character · Cancellation of prosecutorial delay discount by defendant's own applications · Prejudice from late change of trial judge
Outcome: Application for leave to appeal granted; appeal allowed in part; sentence reduced from 21 months' imprisonment to 17 months' imprisonment on each charge, to run concurrently.