HKSAR v. DANIEL JOHN PETER

CACC 604/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 604 OF 1999

(ON APPEAL FROM DCCC 664/1999)

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J U D G M E N T

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Leong JA (giving the judgment of the Court):

1. The applicant was convicted after a trial in the District Court before Deputy Judge Winston Leung of one charge of attempting to obtain property by deception. He was sentenced to 21/2 years' imprisonment. He now seeks leave to appeal against conviction and sentence. In respect of his application for leave to appeal against conviction, the applicant acts in person. In respect of the application for leave to appeal against sentence, the applicant is represented by Mr McGuinniety.

2. The particulars of offence allege that the applicant dishonestly attempted to obtain from Carl Barry Bonass the sum of US$100,000 by falsely representing that he was in possession of US$5,000,000 which could be kept by Carl Barry Bonass for 5 years with no interest due but a courier fee of US$100,000 in advance was required from Carl Barry Bonass.

3. The events leading up to the arrest of the applicant began with a meeting on 8 July 1999 when Carl Barry Bonass, a police inspector working undercover, met the applicant in the latter's room in the Marco Polo Hotel. At this meeting, the applicant told Inspector Bonass that he was a member of a syndicate which laundered black money and he could arrange for Inspector Bonass to have the use of US$5,000,000 for 5 years without being charged with any interest except that the inspector had to pay 2% of this sum to the applicant as courier fee for the delivery in Hong Kong to the inspector of the amount of US$5,000,000. This arrangement was agreed by the inspector.

4. The applicant and Inspector Bonass and two other persons met again that afternoon in the bar in the Conrad Hotel but the meeting was purely social.

5. The third meeting was on the following morning. When Inspector Bonass met the applicant in the applicant's room, Inspector Bonass took out a cashier order of US$100,000 payable to the applicant and left it with the applicant. After Inspector Bonass left the room, other police officers who had been laying ambush outside the room, rushed in and arrested the applicant.

6. The prosecution evidence against the applicant is mainly the evidence of Inspector Bonass on the meetings between him and the applicant. The conversations at these meetings were all tape-recorded by a hidden recorder on the person of the inspector. The recorded conversations at these meetings showed that the applicant told the inspector that he had some money lying around and the owners wanted the money to get out of their country. The money was not drug money or weapon money. The applicant told the inspector that the money came from trading diamonds stolen from the mines. For a price, they wanted the money to become "white" and they would skip interest. The applicant told the inspector that he wanted a company cheque and the money would be US$5,000,000 for five years. The money would be delivered to the inspector in almost new US$100 notes contained in a briefcase and the inspector would be the only one who knew the number that opened the case. The applicant also told the inspector that he had to pay the courier fee of 2% of the amount of the principal in advance. Finally, the applicant assured Inspector Bonass that he need not worry about not getting the money after he paid the courier fee.

7. On the morning when Inspector Bonass took the cashier order to the applicant, the applicant took the cashier order in his hands and checked if his name on the cashier order had been correctly spelt.

8. This conversation about the cheque was monitored by Inspector Cope, who listened through a radio transmitter carried by Inspector Bonass. Inspector Cope's evidence corroborated the evidence of Inspector Bonass.

9. The defence was that what the applicant offered to the inspector had been offered to a German previously during a conversation at a bar but it was not meant to be serious. The applicant said that that was only an idle banter between the two drunken men. When the German later brought along Inspector Bonass, the applicant just carried on with his joke and fantasy. Even after the first meeting when the agreement was reached between the inspector and the applicant, the applicant still believed that it was a joke and he believed that Inspector Bonass would not come up with US$100,000. On the morning when Inspector Bonass came with the cheque, the applicant said he was surprised to find that the inspector had taken the matter so seriously. The applicant said that he had mentioned something about the name spelling on the cheque but he had never touched the cheque and he had asked the inspector to take it back.

10. In his grounds of appeal, the applicant complained that the main prosecution witness was a police protected informer and he was trapped by the police informer. He said that he did not deny he had lied, imagined or fantasized but he definitely did not have the intention to deceive. He also complained that the Deputy Judge had made up his mind before the trial.

11. In his reasons for verdict, the Deputy Judge referred in detail to the transcript of the recorded conversations between the applicant and Inspector Bonass and the Deputy Judge stated that he had himself listened to the recording carefully. He had also considered the evidence of the applicant in detail. In the end, the Deputy Judge rejected the applicant's evidence and found that the applicant intended to obtain US$100,000 from Inspector Bonass by representations that the applicant admitted were false. He found the applicant had attempted to obtain the money represented by the cheque and this was a dishonest scheme of cheating Inspector Bonass of the money and the applicant had accepted the cashier order left in the hotel room by Inspector Bonass. He also found that this was not a case where the police trapped the applicant into doing something which the applicant would not have done except for the police action.

12. In our view, once the Deputy Judge accepted the evidence of the prosecution and rejected the evidence of the applicant, as he did, he was bound to convict the applicant of the charge. There was ample evidence for the Deputy Judge to reach the conclusion he reached. There is no merit whatsoever in the application for leave to appeal against conviction and this application must be dismissed.

13. As regards the application for leave to appeal against sentence, the Deputy Judge, in sentencing the applicant, said the applicant had perpetrated a scheme of deceit which if successful would give the applicant a considerable sum of US$100,000. He said the scheme whereby the applicant purported to cheat Inspector Bonass was an elaborate one. The Deputy Judge adopted a starting point of 2 1/2 years' imprisonment. He had considered the applicant's age of 63 years and his foreign national status and clear record in Hong Kong but he said that these would not entitle the applicant to any preferential treatment. The Deputy Judge considered that the applicant should not be entitled to any discount and he imposed a sentence of 2 1/2 years' imprisonment as he did.

14. Mr McGuinniety, counsel for the applicant, stated a number of grounds in support of his contention that the sentence was manifestly excessive. In the first and second grounds, the complaint is that the Deputy Judge refused to give the applicant any discount despite the applicant's age of 63 and clear record, the present offence was out of the applicant's character and the chance of the applicant re-offending is remote.

15. Mr McGuinniety has urged upon us these aspects of the applicant's case time and again throughout his submission. However, we consider that his clear record and age do not automatically entitle the applicant to a discount and unlikelihood of re-offending would only mean that it would not be necessary to consider a deterrent sentence. The ultimate question is whether the sentence imposed is manifestly excessive having regard to all the circumstances of the case. If not, the sentence should not be disturbed.

16. In the third ground it is submitted that the Deputy Judge had punished the applicant for the manner in which he defended the case. This is based on what the Judge said at p. 23 of the transcript where he said:

17. In our view, the Deputy Judge only did not give the applicant the discount to which he would have been entitled had he pleaded guilty to the charge because the applicant was convicted after trial. No court time had been saved.

18. What the Deputy Judge said at p. 23 was in effect that the applicant by his defence had demonstrated that he had no remorse. This should not be regarded in any way as the Judge punishing the applicant for the way in which he defended his case.

19. In the fourth and fifth grounds, the applicant's complaint is that the Deputy Judge failed to give a discount for entrapment. On this ground, we do not think that there is any element of entrapment in this case. There is nothing in the case that the applicant was incited to commit the offence which he would otherwise have not done. Indeed, it was the applicant who went out to get the inspector to fall into his scheme. This ground must fail.

20. The sixth and seventh grounds complain that the Deputy Judge had failed to consider that no loss had been suffered by anyone nor there was any benefit to the applicant and there are special circumstances that the applicant should not be sent to prison.

21. In our view, loss to the victim and benefit to the offender are usual considerations in sentencing. But the ultimate question in the present case is whether in all the circumstances of the case including the applicant's age, there was no loss to anyone and no benefit to the applicant, 21/2 years' imprisonment is manifestly excessive or wrong in principle. We do not think so. The application for leave to appeal against sentence is dismissed.

22. Since these applications are entirely without merit, we accordingly order that two months of the time the applicant has spent in custody shall not count as part of his sentence.