HKSAR v. Mak Chun Kong

CACC 446/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 446 OF 2013

(ON APPEAL FROM DCCC NO. 483 OF 2013)

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J U D G M E N T

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Hon McWalters JA (giving the judgment of the Court):

Introduction

1.The applicant was tried in the District Court before District Judge W K Kwok (“the judge”) on a Charge Sheet charging him with one charge of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200 and two charges of handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210.  These latter two charges were pleaded in the alternative to the first charge of conspiracy to defraud.  Finally, there was a charge of resisting a police officer in the execution of his duty, contrary to section 63 of the Police Force Ordinance, Cap 232.

2.On 27 November 2013 the applicant was convicted of the first charge with no verdict, as a consequence, being returned on Charges 2 and 3.  He was acquitted of the offence of resisting a police officer in the execution of his duty.

3.On 11 December 2013 he was sentenced by the judge to 5½ years’ imprisonment in respect of his conviction for conspiracy to defraud.

4.The applicant applied for leave to appeal against his conviction and his sentence.  On 8 August 2014, at the first hearing of his applications, when he was unrepresented, we ordered that he be granted legal aid and directed that the Director of Legal Aid be provided with a transcript of that day’s hearing so as to be aware of our concerns. 

5.Subsequently perfected grounds of appeal were filed on behalf of the applicant and the applications were listed for hearing on 7 January 2015. At the conclusion of the adjourned hearing of the applications, we reserved our judgment and said we would hand it down at a later date.  This we now do.

The Prosecution Case

6.In its charge the prosecution pleaded a conspiracy to defraud occurring between 28 March and 8 October 2012.  The applicant was alleged to have conspired with Tam Wing Hung and other persons unknown to defraud Standard Chartered Bank (Hong Kong) Limited (“SCB”) and Citibank (Hong Kong) Limited (“Citibank”) by dishonestly:

“(a) falsely representing that the copies of identity cards and documents relating to the employment and income of various persons in the applications for credit cards from Standard Chartered Bank (Hong Kong) Limited and Citibank (Hong Kong) Limited were genuine;

(b) causing and inducing Standard Chartered Bank (Hong Kong) Limited and Citibank (Hong Kong) Limited to issue credit cards;

(c) receiving the said credit cards issued by Standard Chartered Bank (Hong Kong) Limited and Citibank (Hong Kong) Limited and using the said credit cards to purchase various goods including iPhones, iPads, MacBooks, iPod Touches and Apple accessories.”

7.The co-conspirator Tam Wing Hung (“Tam”) became the applicant’s wife during the currency of the conspiracy.[1] They married on 17 May 2012.  In a nutshell the prosecution alleged that they and others used the identity of other persons to apply for credit cards from the two particularised banks using false information, such as residential addresses and employment details, and forged documents such as proofs of addresses and income, for this purpose.  After they had obtained the credit cards that had been issued to them, they then used them to obtain cash advances and to pay for goods and services.  As a result losses were caused to the banks and these losses amounted in total to $527,457.26.

8.Pursuant to the conspiratorial agreement a total of 13 applications for credit cards were made in the names of nine persons who had not made and were unaware of the applications.  The banks were misled into issuing 12 credit cards,[2] 11 of which were then used to dishonestly withdraw cash advances and pay for goods and services.  Only one application for a credit card was rejected and this was by Citibank.

9.The prosecution called a total of seven witnesses at trial with the remaining evidence being adduced either by Admitted Facts, statements read under section 65B of the Criminal Procedure Ordinance, Cap 221 or bankers’ affirmations.  The applicant elected not to testify or call any witnesses.

10.In his Reasons for Verdict the judge summarised the manner in which the fraudulently obtained credit cards had been misused in order to benefit the conspirators and cause losses to the banks:

“(i) eight credit cards (ie Cards 3 to 8, 10 and 11) had been used to place orders and pay for goods ordered online from Apple South Asia Pte Ltd. (‘Apple Store’) for the total sum of $366,754 between 9 May 2012 and 30 September 2012 (both dates inclusive) when none of the purported cardholders of these cards had placed any order for the goods.

(ii) six credit cards (ie Cards 1, 2, 4, 8, 9 and 10) had been used to obtain cash advances in the total sum of $138,600 from SCB on 16 occasions between 29 April 2012 and 20 July 2012 (both dates inclusive) when none of the purported cardholders of these cards had drawn the money or was aware of the withdrawals.

(iii) Card 1 was used to pay $2,400 on 6 August 2012 to engage the secretarial services of Servcorp Hong Kong Limited (‘Servcorp’) which would inter alia receive letters and parcels on behalf of its clients. Card 2 was used for the same purpose to pay another sum of $2,400 to Servcorp on 15 August 2012. However, the purported cardholder of these two cards (ie Chan Lai-ha) had not engaged the service of Servcorp.

(iv) In addition to the losses referred to earlier on, the banks also lost late charges and service charges for the sum of $7,290 and loss of interest for the sum of $10,013.26 arising out of these credit card transactions.”

11.These acts of the conspirators were not the only acts committed pursuant to the conspiratorial agreement.  There were a number of occasions where attempts had been made to use the cards to order goods on-line but they had not been successful.  There was also the unsuccessful fraudulent application to Citibank for the issue of a credit card which was rejected by the bank.  Finally, one of the fraudulently issued credit cards did not result in any loss to the bank simply because the card was not used.

12.There were two key factual disputes in the trial, namely whether the applicant could be proven to be part of this conspiracy and whether it could be proven that there was another co-conspirator in addition to Tam.  There was also a legal dispute, namely whether, given the applicant and Tam married each other in the course of the charge period, the applicant could be guilty of conspiracy.  Bound up in this latter issue was the factual issue of whether there were any other co‑conspirators in this conspiracy and a legal issue of the effect of section 159B(2) of the Crimes Ordinance, Cap 200 on the applicant’s criminal liability if the conspirators were proven to be only the applicant and his wife.  Relevant to the legal issue created by their marriage is whether it was proven that they conspired together prior to the date of their marriage.

13.The applicant did not dispute much of the prosecution case.  Thus, there was no dispute that the credit cards in question had been fraudulently obtained using the identities of genuine people and that the cards had been used dishonestly in the manner alleged by the prosecution.

14.However, notwithstanding that the applicant did not dispute much of the prosecution evidence the prosecution still had difficulty in proving its case. This was because the person or persons involved in this criminal enterprise went to great efforts to commit the criminal acts invisibly and to leave no clues as to their identities.  For example, it is likely that all of the applications for credit cards were made on-line or by fax to the banks,[3] the orders for the purchases of goods were made on‑line and the vendor of the goods, Apple Store, was directed to deliver them to secretarial companies with whom the culprits also avoided face to face contact.  Consequently, the prosecution case was very much a circumstantial one, relying heavily on the drawing of a number of inferences.

15.The first step in proving its case was for the prosecution to show that all the credit card applications were linked and that one person or group of persons were behind all the fraudulent applications and subsequent use of the fraudulently issued cards.

16.To this end the prosecution relied on the fact that there were features of the applications for the credit cards that were common to many of them, such as the same false residential addresses and places of employment.  The forged income proofs, though purporting to emanate from different employers, were identical in format.  Also, most of the issued credit cards were used to make on-line purchases from the Apple Store with a direction to the vendor that the goods were to be delivered to the same address, either a secretarial company by the name of Business Centre (Hong Kong) Limited (“Business Centre”) or a secretarial company by the name of Servcorp Hong Kong Limited (“Servcorp”). This allowed of an inference that the same person or persons were responsible for making all the fraudulent applications and were the same person or persons making use of the cards.  One of the cards that followed this pattern was in the name of Chan Lai Ha.

17.Two of the credit cards did not fall into this pattern but they could, nevertheless, be linked to the other cards by other evidence.  They were cards issued by SCB and were in the names of Leung Tung Ki and Woo Ka Yee.  On 23 September 2012 these names were given to Servcorp as contact persons during the currency of Servcorp’s engagement.  Servcorp had been engaged on 6 August 2012 for the purpose of receiving goods which had been purchased with credit cards from the Apple Store but when first engaged Servcorp had been dealing with a person claiming to be Chan Lai Ha, the holder of two of the cards issued by SCB.  By this evidence the inference could be drawn that the same persons who were behind the Leung Tung Ki and Woo Ka Yee cards, were also behind the Chan Lai Ha and other cards.

18.Once the evidence established that all the applications for credit cards and use of the issued cards were part of the same criminal enterprise then it could be inferred that the criminal enterprise commenced from the date the first application for a credit card was made, namely on 28 March 2012.  If it could be proven that the criminal enterprise was a joint enterprise and that these applications were made pursuant to an agreement reached by the parties to that joint enterprise then the inference could be drawn that the conspiratorial agreement was formed by 28 March 2012.  This is important should it be proven that the only parties to the conspiratorial agreement were the applicant and his wife, for it would then mean that the conspiracy pre‑dated their marriage to each other.

19.The evidence showing that this criminal enterprise involved more than one person came from evidence of the behind-the-scenes conduct of those participating in it.  Although these conspirators went to great efforts to conceal who they were, the evidence made it quite clear that there were at least two persons “pulling the strings”, one of whom was a woman and the other a man.

20.Although a computer could be used by the conspirators to remotely apply for the credit cards and to remotely purchase the products from the Apple Store, there, nevertheless, had to be a physical involvement by them in retrieving the mailed credit cards from the addresses to which they had arranged for them to be sent and in taking delivery of the Apple Store goods.

21.In order to limit the extent to which they would be visible and to distance themselves from the receipt of the Apple Store goods the conspirators engaged secretarial companies to take delivery for them of the fraudulently obtained goods.  They would then employ private delivery companies to uplift the goods from the secretarial companies and deliver them to themselves.  This method of carrying out the criminal enterprise meant that there was telephone contact with both the secretarial companies and the delivery companies but face-to-face contact only with the employees of the delivery companies that actually handed over the goods to them.

22.The two secretarial companies that were engaged were Business Centre and Servcorp.  Business Centre received an e-fax application for use of its services on 3 May 2012.[4] The contact person was said to be Lai Chun Lun, a name on two of the fraudulently issued credit cards.  This company was used to receive goods from Apple Store on 31 May, 15 June, 5 July and 27 July 2012.

23.As previously mentioned, Servcorp was first approached on 6 August 2012 by Chan Lai Ha, whose name was on two of the fraudulently issued credit cards.  Servcorp started providing services to Chan Lai Ha but when its staff tried to contact this person by phone using the number provided to them, they were unsuccessful.

24.Finally, on 23 September 2012 Servcorp received an e-mail purporting to come from Chan Lai Ha and indicating that two other persons, Woo Ka Yee and Leung Tung Ki should be added as contact persons for the purpose of the engagement.  These two names appear on two of the SCB credit cards.  On 3 October 2012 an employee of Servcorp spoke to a woman claiming to be Woo Ka Yee and who gave her contact phone number as 9456 4641.  This communication by the woman claiming to be Woo Ka Yee was prompted by the fact that DHL had tried to deliver goods from Apple Store addressed to Woo Ka Yee but Servorp had declined to accept them because it did not have an identification document for Woo Ka Yee.

25.There were a number of conversations over the course of several days between the woman claiming to be Woo Ka Yee and the employee of Servcorp and the issue was resolved only on 8 October 2012 when Servcorp received from the e-mail account of Chan Lai Ha four image files purporting to contain a copy of the identity card of Woo Ka Yee and a copy of the business registration of Minwin Group Hong Kong Company Limited (“Minwin Group”), the company on whose behalf the conspirators were purporting to engage Servcorp’s services.  The quality of this latter document and the content of the telephone calls aroused the suspicions of Servcorp staff who made a report to the police.

26.When it came to delivery of the goods the person Woo Ka Yee claimed to be unavailable to pick up the goods and sent a driver to do so.  This was Lau Kai Man, who was PW2 at trial.  He said he was notified by Oriental Transportation to contact a client on phone number 5107 3157.  He rang that number and a male answered his call.  This male told Mr Lau to go to the office address of Servcorp to pick up goods for a company called Minwin Group and to deliver the goods to the Panda Hotel in Tsuen Wan.  The charges were agreed at $300.

27.Before 3 p.m. the same day Mr Lau received a call from the number 5107 3157 but this time the person using this number was a female.  She also instructed Mr Lau to inform staff at Servcorp that he was picking up goods for Minwin Group.  He went to Servcorp at around 4 p.m. and on arrival he called the number 5107 3157 to inform the person answering this number that he had arrived at Servcorp.  This time the person answering the phone was a male.

28.Mr Lau then picked up the goods and in a controlled delivery monitored by the police he delivered them to the applicant.  Before doing so there were more calls between Mr Lau and the person using phone number 5107 3157.  The police were in the vicinity and they arrested the applicant after Mr Lau had handed over the goods to him in the street near the Panda Hotel.  The police searched the applicant and seized from his person three mobile phones, one of which contained the number 5107 3157.

29.Of course, once it was proven that all the credit card applications were part of the same criminal enterprise then it could be inferred from the fact that those applications were purporting to come from both men and women, that those behind the applications would have to have at least one man and one woman who could masquerade as the credit card applicants should that become necessary.  In fact, this did happen with some of the male applications.  Three conversations took place on 17 September 2012 between a male using the number 5107 3157 and staff members of SCB handling customer service hotline and credit card applications.

30.Further proof that there was a woman involved and that woman was, in fact, the applicant’s wife came when the police searched her residence.  Only her father was at home.  The police seized from her home the cardholders of two SIM cards with the respective telephone numbers 9456 4641 and 6571 6140.

31.The phone number 9456 4641 was the contact number given by the woman caller to the Servcorp employee on 3 October 2012 and the Servcorp employee had, in fact, used it to telephone a woman.  This same number was recorded as the contact phone number for Woo Ka Yee in the application for a credit card that was made in this person’s name.  It was also given to Apple Store when the order was placed for goods using the credit card in the name of Woo Ka Yee.

32.As for the other number, 6571 6140, it was recorded as the contact number on the application for a credit card made in the name of Lau Suk Han.  This person’s name had been used to apply for credit cards from both SCB and Citibank.  The date of application for these cards were 13 April and 9 May 2012 respectively and so these acts both pre-dated the applicant’s marriage to Tam.

33.There was also agreed evidence that Tam had worked for a company between 12 July and October and suddenly left her employment without warning.  The salary statements she received from this company are identical, in their format, to the proofs of income submitted in support of the credit card applications.

34.There was also other evidence linking the applicant to the criminal enterprise.  As previously mentioned Apple Store goods were delivered to Business Centre.  Once there, a self-employed driver, Mr Chung Cheuk Man would collect them on the instructions of a person who contacted him over the phone.  He was instructed by this person to deliver the goods to the entrance of the Panda Hotel.  It was an admitted fact that at a properly conducted identification parade Mr Chung positively identified the applicant as the person to whom he delivered goods on 27 July 2012.

35.Mr Chung claimed that he had been engaged by the applicant on six occasions to collect and deliver goods for him.  The applicant, however, called himself Mr Cheung rather than his real name.  Thus, Mr Chung could not only link the applicant to goods acquired by the fraudulently issued credit cards, he could also prove that throughout his dealings with the applicant, the applicant had deliberately concealed his true identity from him.

36.There was also evidence that linked the applicant to one of the credit card applications.  When the police searched the applicant’s house they found in a gap between a cabinet and a bed inside the applicant’s mother’s room a letter from SCB addressed to Lau Suk Han.  This person was one of the applicants for an SCB credit card and on the application the address of Lau was given as 11/F, 10 Shek Kip Mei Street, Sham Shui Po, and this was the address on the letter.  This credit card was applied for on 13 April 2012 and so pre-dated the applicant’s marriage to Tam.  The first cash advance on this card was on 29 April 2012.

The Reasons for Verdict

37.In a lengthy and detailed Reasons for Verdict the judge very carefully and meticulously set out the evidence, his analysis of it and the inferences he drew from it.  He explained in some detail the reasons why he drew the inferences he did.  His key inferences were:

(i)  all the applications for credit cards were made by the same person or persons;

(ii)  all the uses of the credit cards were made by the same person or persons;

(iii)  the purpose of those in this criminal enterprise was to benefit themselves and cause losses to the banks;

(iv)  there were at least one woman and one man involved in this criminal enterprise;

(v)  the applicant’s wife was a participant in the joint enterprise;

(vi)  from the fact that telephone card covers for numbers used in carrying out the criminal enterprise that were seized from Tam’s home, that Tam was the user of these numbers;

(vii)  the applicant was a participant in the joint enterprise;

(viii)  from the fact that a letter from SCB to one of the credit card applicants was found in the applicant’s home, that the applicant, or some other person, had taken the letter to the applicant’s home and this person must have been a party to the criminal enterprise;

(ix)  the applicant and his wife were acting in concert with one another in this criminal enterprise;

(x)  each of the applicant and his wife participated in the joint enterprise prior to their marriage on 17 May 2012; and

(xi)  there was at least one other who was a member of this joint enterprise.

38.The judge recognized that his last inference above, inference (xi), was not necessary to his conviction as the applicant and his wife could be co‑conspirators with each other as long as they were not married when they first conspired together.  In reaching this legal view of the impact their marriage had on their criminal liability, the judge relied on section 159B(2) of the Crimes Ordinance, Cap 200.

39.Effectively, the judge said that section 159B(2) denied the applicant any benefit from the fact that he was married to Tam as their conspiratorial agreement pre-dated their marriage.  Furthermore, as he found that there was a third member of the conspiracy, the issue of whether the applicant could conspire with Tam ceased to arise as he found, as a fact, that the applicant had conspired with another unknown person.

The Grounds of Appeal Against Conviction

40.Until we ordered that legal aid be granted to the applicant, he was not represented.  However, once represented his counsel filed perfected grounds of appeal and a written submission in support of them.  At the time this was Mr P.Y. Lo.  Mr Lo has since been replaced by Mr Tong Ming who was the applicant’s counsel at trial.  Mr Tong adopted both the grounds of appeal perfected by Mr Lo and the written submission he filed in support of them.

41.The Perfected Grounds of Appeal complain of three matters.  The first is that the judge erred in drawing the inference that there was a third conspirator.  This inference, it is argued, was not the only reasonable inference available on the evidence.  The second matter is that the judge erred in relying on section 159B(2) of the Crimes Ordinance which, it is said, applies only to statutory conspiracies and not to the common law offence of conspiracy to defraud.  The third matter of which complaint is made is that, assuming the first two complaints are made out, the judge erred in convicting the applicant for under the common law a husband and wife cannot conspire together. 

Discussion of the Appeal Against Conviction

42.In his Reasons for Verdict the judge considered whether there was a third member of the conspiracy.  A number of persons were mentioned in the evidence and the judge considered whether the persons described could be someone other than the applicant and his wife and if so whether that other person had been proven to be a co-conspirator.  He concluded that he could not be so satisfied. 

43.Nevertheless, he did infer the existence of a third co‑conspirator.  The inference was based solely upon the evidence of a police officer, DSPC 51577, who was PW7 at trial.  This officer went to 11/F, 10 Shek Kip Mei Street on 9 October 2012 and found 3 rooms there.  Each was occupied by different people all of whom had no connection with this case.  A male resident took DSPC 51577 to the ground floor and there used a key to open a letter box for him.  

44.Inside the letter box there were a number of letters that were exhibited as P8-P21.  These letters were sent by SCB and were addressed to some of the purported cardholders at this address.  In respect of this evidence the judge concluded:

“73.  … It is only reasonable and irresistible to infer that Cards 1 to 11 had all been sent to that letter box and taken away by the conspirators, and that they or any of them could not have done so unless they had obtained the consent of the owner of that letter box to use that letter box, since a key was required to open that letter box.

74.  For this reason, I find that there was at least one other person in addition to the defendant and Tam Wing-hung who were involved in this conspiracy.”

45.Crucial to this inference is an assumption that access to the letter box could only be obtained through the owner of the letter box.  But even if this assumption is made the evidence does not allow of an inference that this person was a co-conspirator as opposed to simply a person who provided the limited assistance of allowing the applicant to make use of his letter box without knowing the details of the conspiracy and without intending to become a party to it.  It does not allow the inference to be drawn that this person was a co-conspirator. 

46.It must be remembered that the prosecution was not suggesting that any of the residents of the 11^th floor of this building were involved in this case.  This was brought out by the prosecutor in his examination-in-chief of DSPC 51577:

“Q. And I think there were three rooms on the 11^th floor each of which were occupied by different people?

A. That’s correct.

Q. Three people who, so far as your investigation indicated, had nothing to do with this case?

A. That’s correct.”

47.Thus, the judge had positive evidence before him that the residents of the 11^th floor were not implicated in the conspiracy.  In these circumstances it seems bold indeed for the judge to make a finding of fact beyond reasonable doubt that, contrary to the prosecution case, one of the residents of this floor was a co-conspirator.

48.In drawing an inference regard must be had to the whole of the evidence, including whether there are any obvious gaps in it.  Here the evidence was not complete because the applicant’s wife had not been arrested and so it could not be known what further details might have been revealed about the implementation of the conspiracy had she been able to be located.  But, more importantly, what the evidence did reveal is a well thought out fraud in which the participants went to great lengths in making use of other people in order to remain invisible.  Modern communications, the internet, fax machines and telephones, were employed to avoid face-to-face contact.  Secretarial companies and delivery companies were also employed to limit the extent to which each party in the chain could link the delivery of the fraudulently obtained goods to the applicant and his wife.  Given the fraudsters’ method of operation one has to be particularly careful in drawing an inference that a person involved in the process of arranging ordered goods to get into the hands of the fraudsters was in fact part of the fraud. 

49.The inference the judge drew that the owner of the letter box who allowed the applicant and his wife to make use of it was a co‑conspirator was quite speculative and far from being the only reasonable and irresistible inference, was not, in our view, an inference reasonably open on the evidence.

50.In the absence of a third conspirator the judge said he would rely on section 159B(2) of the Crimes Ordinance, Cap 200.  It is now conceded by the respondent that it would have been wrong for him to do so as section 159B(2) only applies to statutory conspiracies and not to the common law offence of conspiracy to defraud. 

51.For conspiracy to defraud the relevant legal principles are those developed at common law concerning the legal capacity of a wife to conspire with her husband.  However, the respondent argues that the common law principles are the same as the statutory provision contained in section 159B(2) which it says is merely declaratory of the common law.  In support of this contention the respondent relies on R v Robinson & Taylor (1746) 1 Leach 37, 168 ER 121 which it says is authority for the proposition that “where a man and woman first conspired and afterwards married, they could be convicted of conspiracy”.  There is no doubt that over the years courts and legal commentators have regarded this case as authority for this proposition.  The question is, what precisely is meant by it?

52.The problem with Robinson’s case is that within the body of the judgment there is no discussion of the common law principle that a wife cannot be convicted of conspiring with her husband.  Nor are the particulars of the charge set out in the judgment and so it is not clear whether the defendants were convicted of continuing to conspire together after they were married. Robinson was a widow and she and Taylor agreed that he should marry her under the name of the Richard Holland so that he could impersonate him in order to become entitled to his estate, “and in pursuance of which conspiracy they were married accordingly at the parish church of Saint Andrew, Holborn”.[5]

53.Although there is no discussion in the judgment of the court on the common law principle that a wife is incapable of conspiring with her husband we see nothing controversial in the facts of the case if it said to be authority for no more than the principle that the subsequent marriage of two conspirators does not have a retrospective effect of preventing them from conspiring together before the date of their marriage and being liable for acts committed after their marriage which are committed in pursuance of the agreement formed between them before their marriage.  However, given the limitations inherent in the Robinson judgment, to which we have adverted, we do not believe that it can be said to be authority for the proposition that the fact that two persons conspired together before subsequently marrying each other, has the effect of disapplying the common law principle to the conspiracy so that they can both be guilty of continuing to conspire with each other after the date of their marriage. 

54.Such a proposition may, arguably, be inconsistent with the basis of the common law principle which this court accepted in R v Cheung Ka Fai [1995] 2 HKCLR 184 to be as set out by the Privy Council in its judgment in Mawji v R [1957] AC 126.  In that judgment, at page 135, the Privy Council accepted that the rule that a husband and wife cannot conspire together “is an example of the fiction that husband and wife are regarded for certain purposes, of which this is one, as in law one person”.  This statement of the rule it derived from Hawkins’ Pleas of the Crown, 1 Hawk., C27, s.8, p. 448 where it was said:

“… no such prosecution is maintainable against a husband and wife only, because they are esteemed but one person in law, and are presumed to have but one will.”

55.If this is the basis of the rule then it may also be arguable that from the time the conspirators marry one another the conspiracy comes to an end because there is no longer two separate persons each harbouring a separate intent to form an agreement with the other.  Be that as it may this is not an issue we need to resolve.  We say this because the charge pleads a conspiracy by the applicant and Tam between 28 March 2012 and 8 October 2012.  Within this period, at least up to the date of their marriage on 17 May 2012, there is no doubt that the applicant and Tam did conspire together in respect of the unlawful agreement particularized in the charge.  Indeed, in the course of his submissions counsel for the applicant conceded that he had no objection to this Court amending the charge to limit the conspiracy to the period up to 16 May 2012.  However, because there was a conspiratorial agreement within the period particularized in the charge we see no need to amend those particulars.

56.For these reasons we are satisfied that even in the absence of a third conspirator the judge would have been perfectly entitled, as a matter of law, to have convicted the applicant of conspiring with Tam as charged.  Thus, the judge’s error in finding on the evidence that there was a third conspirator, though an irregularity, is not a material one.  The judge’s indication that absent such a finding he would have wrongly relied on section 159B(2) of the Crimes Ordinance to found his conviction of the applicant is, for the reasons we have explained, ultimately irrelevant as, in any event, he was perfectly entitled as a matter of law to convict the applicant.

57.We therefore allow the application for leave to appeal against conviction but, treating the hearing of the application as the hearing of the appeal, dismiss the appeal against conviction. 

The Reasons for Sentence

58.In his Reasons for Sentence the judge said that this offence was a conspiracy to commit a credit card fraud and that the conspiracy had in fact been carried out.  For such an offence there is no sentencing tariff but he sought guidance from statements of principle in a number of credit card sentencing judgments of the Court of Appeal.  These judgments assisted him by directing his attention to the matters relevant to his assessment of the applicant’s culpability.  He took into account the duration of the conspiracy, in terms of its execution, the number of credit cards obtained and the total losses to the two banks.  He rejected the submission advanced on behalf of the applicant that he could not have been the mastermind because of his limited education.  He concluded that “the operation itself was not particularly sophisticated, and I am sure that it did not require a person of great intellectual ability to commit it”.  He took into account that there was no international element but noted that “the defendant and his co-conspirators did make use of secretarial service companies to receive goods obtained dishonestly to hide their identity and to minimize the risk of being arrested”.  He then said that bearing all these factors in mind he was of the view that an appropriate starting point is 5 years 9 months’ imprisonment.  He then discounted this starting point by 3 months to give credit to the applicant for saving court time by agreeing most of the prosecution case.

The Ground of Appeal Against Sentence

59.The only ground of appeal against sentence is that the judge adopted too high a starting point in 5 years and 9 months’ imprisonment in light of what may in law be proven against the applicant.  This ground pre‑supposes that the applicant cannot be sentenced for any conspiratorial acts that were committed after the date of his marriage to Tam.

Discussion of the Appeal Against Sentence

60.The argument of the applicant is that if the duration of the conspiracy is only until the date of the applicant’s marriage to Tam, namely 17 May 2012, then any conspiratorial conduct by them after that date should not be taken into account for the purpose of sentencing the applicant for the offence of conspiracy to defraud.  This is, in effect, an argument that they cannot be held culpable for acts committed by them pursuant to the conspiracy that were committed outside the period of the conspiracy.  Counsel for the applicant did not cite any authority in support of this proposition.

61.In addressing this argument it is necessary to go back to fundamentals. In sentencing an offender for his criminal conduct a court always looks to the consequences of that criminal conduct.  Here the criminal conduct was the forming of a conspiratorial agreement to defraud two banks by dishonestly causing them to issue credit cards so that they could be used to fraudulently obtain goods.  The applicant and Tam formed that agreement and then they committed a number of acts pursuant to it.  But the offence of conspiracy is not concerned with the execution or carrying out of the agreement, but rather with its formation.  The offence is complete once the unlawful agreement is formed.  But when it comes to sentencing an offender for being a party to that unlawful agreement, all that was done pursuant to that unlawful agreement and the harmful consequences to any victims from that which was done, will of course be relevant to that offender’s culpability.  So long as the act is pursuant to the previously formed agreement then it becomes part of the culpable conduct of the conspirators for which they should be sentenced.  We reject this ground of appeal.

62.This was a carefully thought out fraud.  The lengths to which the applicant and Tam went to conceal their involvement enabled them to successfully carry out the fraud.  Had they not been stopped at the time they were, they would, in all likelihood have continued carrying out the conspiracy and caused greater losses.  There is no error by the judge in his application of sentencing principles and no merit in any of the applicant’s complaints about the length of the sentence.  We have no doubt that the sentence imposed on the applicant is not a day too long.  The application for leave to appeal against sentence is dismissed.

Ms Anna Y K Lai SADPP, of the Department of Justice, for the respondent

Mr Tong Ming, instructed by S H Leung & Co, for the applicant (on 7 January 2015)

The applicant appeared in person (on 8 August 2014)

[1]  This person has not been located by the police.

[2]  SCB issued a total of 10 credit cards with some purported cardholders being issued with two cards whilst Citibank issued two credit cards to two of the same persons to whom SCB cards were issued.

[3]  All the Citibank applications were made on-line but it is not clear how the SCB applications were made although SCB did say that applications could be made either by on-line or by fax.

[4]  This was another act of the conspirators that pre-dates the marriage of the applicant and his wife.

[5]   R v Robinson and Taylor (1746) 1 Leach 37, 168 ER 121.