HKSAR v. WU PING YANG, JIMMY

CACC 293/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 293 OF 2014

(ON APPEAL FROM DCCC NO. 114 OF 2012)

____________

________________________

REASONS FOR JUDGMENT

________________________

Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1. The appellant, who appears in person, sought leave out of time to appeal against his conviction by District Court Judge Browne, on his pleas of guilty, on 25 August 2014 to one charge of using copies of false instruments, contrary to section 74 of the Crimes Ordinance, Cap. 200 (Charge 1) and one charge of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap. 221 and for leave to appeal against the sentence of 4 years and 3 months’ imprisonment imposed in respect of Charge 1 and 2 months’ imprisonment imposed in respect of Charge 2, which sentences were ordered to be served consecutively. The applications were by way of renewal, notice of which was given by the filing of Form VIII filed with the Court on 14 January 2016, following the refusal of both applications by Macrae JA on 30 December 2015. In addition, Macrae JA refused to receive evidence that the applicant sought to put before the Court, pursuant to a Notice of Motion dated 21 July 2015, in relation to the Citibank Singapore bank account. At the hearing we refused to receive the proposed fresh evidence and refused the applicant leave to appeal against conviction out of time and leave to appeal against sentence. We said that we would give our reasons in due course. That, we do now.

2. The applicant gave notice of his application for leave to appeal against sentence by filing Form XI with the Court on 3 September 2014.  On 31 October 2014 his application for the grant of legal aid was refused.  Subsequently, on 27 January 2015, the applicant filed a second Form XI, by which he sought leave to appeal against conviction out of time.  By an affirmation of the same date the applicant sought to explain the delay in filing the application.

The history of the proceedings at trial

3. As the judge noted in his reasons for sentence, the applicant tendered his pleas of guilty only after the completion of his trial.  Evidence was received in the trial, during which the applicant gave evidence himself, on 2 to 4 July 2014.  Then, the matter was adjourned to 10 July 2014, for closing submissions.  On that day, having received closing submissions, the judge adjourned proceedings for delivery of verdict to 18 July 2014.  On that day, Mr Chan Ka Sing, then counsel for the applicant assigned by Legal Aid Department, applied to re-open the defence case and sought and was granted an adjournment to locate witnesses.  On 21 July 2014, having indicated to the judge that the applicant had withdrawn his instructions, Mr Chan Ka Sing was permitted to withdraw from the case, which was adjourned for other legal representatives to be appointed.  On 4 August 2014, Mr Edward Fan Shun Yan, counsel now assigned by the Legal Aid Department to represent the applicant, applied for an adjournment of eight weeks to locate witnesses for the defence but was granted one week only.  On 11 August 2014, Mr Fan was granted a further adjournment so that the defence could interview a witness.  On 15 August 2014, for the first time it was intimated that the applicant now wished to plead guilty to the charges.  As a result, the case was adjourned.  On 25 August 2014, the applicant pleaded guilty to the charges and accepted the Re-Amended Summary of Facts of that date as the basis on which the judge was invited to accept those pleas.

Charge 1

4. In relation to Charge 1, the appellant, a Taiwanese national accepted that, having opened an account of 15 October 2010 with Citibank, at its branch at 72 Nathan Road, Kowloon, on 12 November 2010 he presented five documents dated 18 October 2010, purportedly issued by Citibank Singapore, to a bank officer as proof of funds available to him in a stipulated account with the bank, knowing or believing them to be false with the intent that the officers of the bank accept them as genuine and act to the prejudice of the bank.  The document asserted that there was US$10 billion in that account.  Later that day, Citibank Singapore confirmed that it had not issued the documents and the stipulated bank account did not exist.

5. On 7 December 2011, the applicant was arrested by police officers as he entered Hong Kong through the Lo Wu Control Point.  The applicant was charged with the offence subject of Charge 1 and subsequently released on bail.  His trial was fixed for 28 May 2012 in the District Court.

Charge 2

6. On 28 May 2012, the applicant failed to attend his trial and a warrant was issued for his arrest.  On 26 March 2014, the applicant was arrested in Central.

Reasons for sentence

7. Of the five documents presented by the applicant to a member of staff in Citibank on 12 November 2010, the judge said:

“ The documents were purportedly issued by Citibank Singapore relating to the defendant’s account with the Singapore branch and the first document is a letter confirming funds availability of account 5344-1647-23 held in the name of Wu Ping-yang.

The second document was a confirmation of balance in relation to that account. The third document purported to be a “Tear Sheet”. There was also a letter of the same date regarding the confirmation of account status and proof of funds.

According to these documents, there was US$10 billion in the defendant’s Singapore account.”

Of the applicant’s personal circumstances, the judge noted:

“ The defendant is now aged 63. He was born in Taiwan and educated to university level. I am told that he had worked previously as a merchant in Taiwan, that he had his own investment business and earned the equivalent of HK$20,000 to HK$30,000 per month. He is married with two daughters. The younger daughter is now aged 19 and attending university in Taipei. His elder daughter is 31 and married. I am told that his wife is 56 years of age and sadly she has the hereditary disease Lupus for which she is receiving medical attention. He has elderly parents in their nineties and I am told that his brother is not well and has been in and out of hospital.”

Charge 2

8. In his reasons for sentence, the judge said that he had received evidence from the applicant in relation to the circumstances of the commission of the events the subject of Charge 2.  Of that, he said:

“ In relation to the 2nd charge, failing to answer bail, he alleged at trial that the reason he failed to appear was because he was threatened. Today, he still maintains that he was threatened but he accepts that that was no reason not to answer his bail. I heard evidence in relation to that allegation and I did not accept that he was threatened and I was sure that he had no reason not to answer bail.”

Discount for a plea of guilty

9. Having noted that the applicant had intimated for the first time that he wished to plead guilty only after trial, and then only on the day fixed for verdict, and thereafter matters were adjourned further before the pleas were tendered, the judge said:

“ Normally when a defendant pleads guilty to a charge the starting point for sentence would be reduced by about one-third to reflect the defendant’s remorse and saving of court time. However, the circumstances in this case are very different. I have failed to come across a case where a guilty plea has been entered at such a late stage.

I heard all the evidence in this case and I was sure the defendant lied to the court when he gave evidence. He made allegations against the police which in my view were not true. A witness was called from Singapore. So this is a case where there has been no saving of court time or public expense.

However, I accept that he now does plead guilty and that is accompanied by a change of representation, so I accept that he is entitled to some credit, albeit the plea was entered at a very late stage.”

Charge 1

10. Of the circumstances of the commission of the events the subject of Charge 1, the judge said:

“ …the courts have said that substantial sentences of imprisonment should be imposed for this kind of offence. The maximum sentence is 14 years. The defendant opened an account with Citibank in Hong Kong and attempted to pass off bogus bank documentation indicating that he had access to US$10 billion. He told the bank that he wished to invest about US$1 million into the account.

I had no doubt, and he now accepts, that the documentation was false and I am satisfied the defendant knew they were false. I am sure that the defendant intended to open the bank account in Hong Kong with a view to introducing substantial sums of money into the account from a non-verified source.  This sort of offence is not committed on the spur of the moment, it involves a degree of planning.  There is an international dimension to this case: the defendant is from Taiwan; he appears to be familiar with the banking system in Singapore; the false documentation he produced to the bank purported to be issued by a bank in Singapore and when he gave his evidence in this case he claimed to have been employed at one time by an American company and had business connections with companies on the mainland and elsewhere. Fortunately the deception was spotted by the bank staff and no loss was occasioned.”

Starting point for sentence

Charge 1

11. In respect of Charge 1, the judge stipulated a starting point for sentence of 4 years and 6 months’ imprisonment.

Discount

12. Of the discount to be afforded to the applicant in respect of Charge 1, the judge said:

“ I have considered the guilty plea that has been entered at the late stage and what, if any, deduction should be made from that in view of the guilty plea. I have decided to reduce the sentence by 3 months to 4 years and 3 months.”

Charge 2

13. The judge sentenced the applicant to 2 months’ imprisonment for Charge 2.

14. The judge ordered that that sentence of 2 months’ imprisonment imposed in respect of Charge 2 was to be served consecutively to the sentence of imprisonment imposed in respect of Charge 1. Accordingly, the total sentence of imprisonment imposed on the applicant was 4 years and 5 months’ imprisonment.

Notice of motion to adduce fresh evidence

15. In an affirmation dated 21 July 2015, in support of his notice of motion of the same date to adduce fresh evidence, the applicant affirmed an affirmation to which he attached file documents on the Citibank letterhead in Singapore, dated 18 October 2010, in which he was referred to as the account holder and the account number given as 5344-1677-23.  In addition, he attached documents on the letterhead of Citibank Singapore, including documents dated 2015 in which he was named as the account holder of an account with the same account number.  The documents asserted that US$10 billion was held in the account.  At the hearing, in his oral submissions the applicant confirmed that he persisted in his application that this Court receive that evidence.

Grounds of appeal against conviction out of time

16. Notwithstanding his pleas of guilty at trial, the applicant sought to advance three grounds of appeal against conviction:

(1) the documents, the subject of Charge 1, were genuine;

(2) the judge erred in declining to adjourn the hearing, so as to give sufficient time for a number of staff or Citibank Singapore to come to Hong Kong to apply for the appellant.  Also, the judge threatened the applicant that he would receive a heavy sentence if he pleaded not guilty;

(3) under pressure from the judge, counsel appointed by the Director of Legal Aid forced the applicant to plead guilty.

17. Of the fact that his application was made out of time, in his oral submissions the applicant said that he had difficulties in contacting his family after his conviction and had not been able to do so until January 2015.  Also, he said that a law clerk from the Legal Aid Department and a Welfare officer told him that he should appeal against sentence first, suggesting that he could file a notice to appeal against conviction at any time.

Grounds of appeal against sentence

18. In the grounds of appeal against sentence attached to Form XI, by which the applicant gave notice of application for leave to appeal against sentence, the applicant invited the Court to have regard to his personal circumstances.  He was the breadwinner of his family.  His elderly mother had suffered a stroke and his wife suffered from Lupus and had done so for 30 years.  In those circumstances, he invited the Court to afford him mercy.

19. In addition, the applicant prayed-in-aid arguments advanced in respect of his application for leave to appeal against conviction out of time and contends that the documents, the subject matter of Charge 1, were all genuine and that the judge failed to grant him sufficient time to arrange for a witness from Citibank Singapore to come to testify to that effect.

A consideration of the submissions

The application to adduce fresh evidence

20. As Ms Chan pointed out to the Court at the hearing, the five documents bearing the Citibank letterhead in Singapore which the applicant attached to his affirmation of 21 July 2015, although similar to the five documents of the same date described in the Summary of Facts as having been presented to Ms Tam on 12 November 2010, were different in various particulars.  For example, in the documents the subject of Charge 1 the address of Citibank in Singapore was in the lower case, “One raffles link building”, whereas in the documents attached to the affirmation they were in the upper case, “One Raffles Link Building.”  Further, a full stop was inserted in the former documents in the title “Miss. Susanna Kuck”, described as a Vice President of Citigroup Citibank Singapore Branch, whereas there was no such full stop in that title on the documents attached to the affirmation.  There were other differences in detail between the various documents.

21. In so far as the so-called new evidence pointed to assertions made on Citibank Singapore letterhead that an account in the name of the applicant had US$10 billion it went on also to assert that the account number was the very account number described in the Summary of Facts, accepted by the applicant at the time of his pleas of guilty as having been confirmed by Citibank Singapore as not existing.  In those circumstances, like the single judge, we are satisfied that it is not reasonably arguable that those documents are likely credible.  Accordingly, we refused the application to receive new evidence.

The application for leave to appeal against conviction out of time

22. Section 82(1) of the Criminal Procedure Ordinance, Cap. 221, provides that:

“ A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.”

23. On the plain reading of those words, it matters not whether the conviction was obtained by way of verdict after trial or by way of a plea.[1]  However, as Power VP said in the judgment of this Court in HKSAR v Yip Kai Foon [2]:

“ We accept that the applicant is not debarred from appealing by reason of his plea. If, however, an applicant is to have any chance of success in his appeal, he must, as was done in R v Lee (Bruce) [1984] 1 WLR 578, establish that there is some overriding factor which makes the conviction founded on the unequivocal plea unsafe and unsatisfactory.” [Italics added.]

24. So, it follows that although the applicant has been convicted on his own pleas of guilty, and after he accepted the Summary of Facts as the basis for the court accepting those pleas, in the circumstances described above this Court may entertain an application for leave to appeal against conviction.

The application for leave to appeal against conviction

25. As we pointed out to the applicant in the course of the hearing, Form XI, dated 3 September 2015, signed by the applicant and by which he gave notice of his application for leave to appeal against sentence, has a double line written across the text in both English and Chinese in respect of “Leave to appeal against conviction”.  The meaning is clear: no application was made for leave to appeal against conviction.  We do not accept the applicant’s assertion that he was informed that he could apply for leave to appeal against conviction whenever he wanted.  The applicant has offered no plausible explanation for making his application out of time.

26. In any event, in accepting the Summary of Facts, the applicant acknowledged that on 15 October 2010 he had told Ms Tam (PW1) of Citibank:

“ …that the amount of money going in and out of the account would exceed US $1 million. PW1 told the defendant that where a customer had such large deposits, withdrawals and/or investments the customer would have to show the Bank proof of the source of such monies. Such proof was to ensure that the monies were not part of criminal proceeds.”

27. It was in that context, that the applicant went on to accept that the five documents purportedly on the letterhead of Citibank Singapore stated that there was US$10 billion in an account, 5344-1647-23, in his name.  Further, the applicant accepted that when he presented those documents to Ms Tam:

“ …he knew or believed that the Documents were false. He presented them to PW1 in order to deceive her into accepting them as genuine, and thus cause the bank to act in its prejudice.”

28. Finally, the applicant acknowledged that the Compliance Department of Citibank Singapore, “confirmed that the documents had not been issued by Citibank Singapore and that the account number 5344-1647-23 did not exist.”

29. Given the circumstances in which the applicant came to plead guilty and accept the Summary of Facts, we are satisfied that there is nothing whatsoever to suggest that there is anything, let alone an overriding factor, which makes his convictions, founded on his unequivocal pleas, unsafe and unsatisfactory.  In particular, we have had regard to the slow-moving choreography resulting in the tendering of the pleas of guilty, on the basis of the Summary of Facts.  The first intimations of his pleas of guilty came after the whole trial had been conducted, closing speeches made and immediately before verdict was to be delivered.  Then, there was an adjournment of ten days before the applicant actually tendered his pleas and accepted the Re-amended Summary of Facts.

Application for leave to appeal against sentence

30. As noted earlier, in his reasons for sentence the judge identified factors, he determined to exist, which went to the gravity of the offence:

“ I am sure that the defendant intended to open the bank account in Hong Kong with a view to introducing substantial sums of money into the account from a non-verified source. This sort of offence is not committed on the spur of the moment, it involves a degree of planning. There is an international dimension to this case: the defendant is from Taiwan; he appears to be familiar with the banking system in Singapore; the false documentation he produced to the bank purported to be issued by a bank in Singapore and when he gave his evidence in this case he claimed to have been employed at one time by an American company and had business connections with companies on the mainland and elsewhere.”

31. In stipulating a starting point for sentence of 4½ years’ imprisonment, the judge made no reference to any comparators for sentence.  None was suggested to him in mitigation.  In those circumstances, regard is to be had to the fact that the judge had the benefit of having received evidence at trial not only of Ms Tam and other Citibank offices but also of the appellant.  Of the chronological sequence of events described in the Summary of Facts it is to be noted that the applicant presented the five Citibank documents dated 18 October 2010 in response to a request that he provide proof of the source of monies, after he had informed Ms Tam that the amount of money going in and out of the account would exceed US$1 million.  Further, that the bank required to be satisfied that the monies were not part of criminal proceeds.  No doubt, that is why two of the five documents that the applicant presented to Ms Tam asserted of the US$10 billion said to be in an account in the applicant’s name with Citibank Singapore were, “good, clean and clear of non-criminal origin”.

32. Clearly, in those circumstances the judge was perfectly entitled to determine that he was sure, “…that the defendant intended introducing substantial sums of money in the account from a non-verified source.”  Why go to all the efforts that the applicant went to, if that was not the purpose of the enterprise?  If the source of the funds to be deposited in the account was legitimate, why produce false documents speaking to the provenance of monies in a non-existent bank account.  Equally, the judge was entitled to determine that the offence involved “a degree of planning” and an “international dimension”.  Obviously, the applicant used the five false Citibank documents in a deliberate and planned attempt to deceive the compliance regime of Citibank.

33. Having heard the evidence of three Citibank officers in the course of the trial the judge was well placed to judge the seriousness of the offence.  We are satisfied that the starting point for sentence of 4 years and 6 months’ imprisonment stipulated by the judge was within the appropriate range of sentence for the offence the subject of Charge 1.

DISCOUNT OF SENTENCE

34. In addressing the issue of the appropriate sentence to be afforded to the applicant for his plea of guilty, the judge said:

“ Normally when a defendant pleads guilty to a charge the starting point for sentence would be reduced by about one-third to reflect the defendant’s remorse and saving of court time. However, the circumstances in this case are very different. I have failed to come across a case where a guilty plea has been entered at such a late stage.

I heard all the evidence in this case and I was sure the defendant lied to the court when he gave evidence.  He made allegations against the police which in my view were not true.  A witness was called from Singapore.  So this is a case where there has been no saving of court time or public expense.”

35. Nevertheless, the judge went on to say that, in light of the applicant’s plea of guilty:

“ … I accept that he is entitled to some credit, albeit the plea was entered at a very late stage.”

36. In the event, the judge said that he afforded the applicant a discount of 3 months’ imprisonment from the stipulated starting point for a sentence of 4 years and 6 months’ imprisonment.

37. Although the judge did not refer to it, the fact that the applicant had failed to attend his trial on 28 May 2012, with the consequence that it was adjourned, and a warrant issued for the arrest of the appellant, was also relevant to the issue of the discount to be afforded to the applicant for his eventual plea of guilty to 5 August 2014.  In the judgment of this Court in HKSAR v Lo Kam Fai [3], the range of factors relevant to the reduced discount to be afforded to a defendant in such circumstances was identified:[4]

“ …the length of time that justice has been delayed; whether or not the defendant surrendered to the authorities ultimately or whether it was necessary for him to be re-arrested; the inconvenience and wasted expense and costs caused by the aborted scheduled hearing, to witnesses, counsel and the court. That is particularly the case, if witnesses have travelled to Hong Kong from overseas or remained in Hong Kong, where otherwise they would not have done so, in order to give evidence. There may be many other relevant factors.”

38. The Court noted that the usual range of reduced discount afforded to a defendant in such circumstances was, “about 20% to 25%”,  [5] although it was noted that in HKSAR v Poon Chun Kong [6] this Court had not interfered with a reduced discount of 16.66%.[7]

39. In that context it is to be noted that, having failed to answer bail and attend his trial on 28 May 2012, the applicant was at large for 22 months until he was re-arrested on 26 March 2014.

40. Of the utilitarian value of the appellant’s plea of guilty after trial and first intimated on the day that verdict was to be delivered, the judge was entitled to determine, “this is a case where there has been no saving of court time or public expense.”

41. In all the circumstances we are satisfied that the judge was entitled to afford the applicant a reduced discount of only 3 months’ imprisonment from the starting point taken for sentence.

Charge 2

42. In imposing a sentence of 2 months’ imprisonment on the applicant in respect of Charge 2, the judge did not identify a starting point for sentence nor did he address the issue of any discount to be afforded to the applicant for his plea of guilty. With respect, in sentencing the applicant the judge ought to have addressed both issues.

43. Clearly, there are a range of circumstances in which the offence the subject of Charge 2 may be committed. In HKSAR v Lo Kam Fai  [8] this Court approved of the starting point of 6 months’ imprisonment taken by the judge in circumstances where the applicant had been re-arrested after having been at large for 2 years and 4 months, which sentence was reduced to 4 months’ imprisonment to afford the applicant a discount for his plea of guilty.

44. The applicant can consider himself fortunate that the judge did not impose a higher sentence for Charge 2. We are satisfied that it was appropriate for the judge to order that the sentence of 2 months’ imprisonment imposed in respect of Charge 2 be served consecutively to the sentence of 4 years and 3 months’ imprisonment imposed in respect of Charge 1.

Loss of time

45. Having delivered our judgment, refusing the applications for leave to appeal against conviction out of time and against sentence, we invited the applicant to address the Court as to the exercise of its power, pursuant to section 83 W of the Criminal Procedure Ordinance, Cap. 221, to order ‘loss of time’. We reminded the applicant that in his judgment the single judge, having informed him that he had the right to renew either or both of his applications, went on to inform him of that power of the Court. Similarly, that Form XIII, by which he gave notice of the renewed applications for leave to appeal, contained a statement in English and Chinese of the Court’s power in that respect immediately above his signature.

46. In response, the applicant merely asserted that the documents in question were not false.

47. We were satisfied that, there being no merit in the applications for leave to appeal against conviction or sentence, it was appropriate to invoke the court’s power. Accordingly, we ordered that two months of the time that the applicant has been in custody since giving notice of his applications for leave to appeal against conviction and sentence, pending the hearing of those applications by this Court, is not to count towards his sentences of imprisonment.

[1] HKSAR v Shum Chiu [2011] 2 HKLRD 246, at paragraph 28.

[2] HKSAR v Yip Kai Foon [1999] 1 HKLRD 277, at 282.

[3] HKSAR v Lo Kam Fai (CACC 374/2014; unreported, 2 February 2016).

[4] HKSAR v Lo Kam Fai, paragraph 31.

[5] HKSAR v Lo Kam Fai, paragraph 32.

[6] HKSAR v Poon Chun Kong (CACC 228/1999; unreported, 12 August 1999).

[7] HKSAR v Lo Kam Fai, paragraphs 39-40.

[8] HKSAR v Lo Kam Fai, paragraphs 21, 46 and 96.