HKSAR v. MAK CHI KWONG

CACC484/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO.484 OF 2003

(ON APPEAL FROM DCCC 380/2003)

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1. This is an application for leave against sentence only.

2. On 31 October 2003, the applicant on his own plea was convicted, together with three other offenders, of various offences of fraud or attempted fraud by Judge Day in the District Court.

3. The applicant, who was the 3rd defendant before the judge, was sentenced on 10 November 2003 in respect of three offences of fraud, contrary to section 16A of the Theft Ordinance (being Charges 1, 2 and 9 on the charge sheet) and two offences of attempted fraud, contrary to the same section and section 159G of that Ordinance (being Charges 4 and 16).

4. In respect of each offence, the judge took a starting point of nine months' imprisonment and reduced the sentence imposed to six months' imprisonment to reflect the applicant's pleas of guilty. He ordered the sentences on Charges 1, 2 and 4 to be served consecutively and those on Charges 9 and 16 to be served concurrently. That arrived at a totality of 18 months' imprisonment.

5. The facts upon which these sentences were founded were as follows. The applicant had joined a scheme in about December 1999 initiated by the 1st defendant which involved the production of false employment documents, such as salary slips, certificates of salary and employment contracts issued under the names of three wholly bogus companies. The applicant used salary slips and certificates purportedly issued by one of those imaginary companies to make applications for loans and credit cards from five finance companies in Hong Kong. Three of those applications were successful and resulted in the applicant being charged with the fraud offences reflected in the 1st, 2nd and 9th Charges. Two of the applicant's applications were unsuccessful and resulted in him being charged with attempted frauds as reflected by the 4th and 16th Charges. The last of his offences was committed on 20 June 2000.

6. Three others defendants involved in the fraud were sentenced by the judge at the same time as he sentenced the applicant.

7. The 1st defendant was sentenced in respect of 15 offences of fraud and attempted fraud. In each instance he had made and provided the false employment documents which were presented by end-user loan applicants to various finance companies. Some $88,000 in all was obtained from the victim companies in this way.

8. In sentencing the 1st defendant, the judge took starting points of 12 months' imprisonment in respect of each offence and reduced that on the basis of his pleas and the stress caused to him by a more than three-year delay in bringing the case to trial to sentences of six months' imprisonment for each offence. All sentences were ordered to be served concurrently except for the sentences imposed in respect of the offences contained within Charges 1, 2 and 3. Those sentences were ordered to be served consecutively. That resulted in a totality of 18 months' imprisonment.

9. The 2nd defendant pleaded guilty to and was sentenced in respect of four offences of fraud and attempted fraud and was sentenced to a totality of 16 months' imprisonment.

10. The 4th defendant was convicted of one offence of aiding and abetting a fraud after trial and was sentenced to eight months' imprisonment.

11. There were other offenders who were prosecuted in the magistracy. They were persons who were provided with the documents for the purpose of making loan applications.

12. There are two substantive grounds of appeal advanced by Miss See on behalf of the applicant.

13. The 1st ground asserts that the judge was wrong to find that the applicant's culpability was in the same category as that of the 2nd defendant who had assisted the 1st defendant in the production of the false documents and assisted also some of the end-users of the documents to apply for loans. Miss See says the applicant had done neither of these things.

14. The 2nd ground of appeal is simply that the judge omitted to give the applicant any discount for the delay in the case coming to trial whereas all other defendants had received such a discount in their sentences.

15. So far as the 1st ground is concerned, the judge said in the course of sentencing :

" In broad terms, the 1st defendant was the man who had the idea and set the whole scheme up. His is the most serious position. The 2nd defendant was recruited to use his computer skills to produce the false documents. I propose to sentence the 2nd, 3rd and 4th alike."

16. Miss See argues that it was wrong to place the applicant in the same category as the 2nd defendant as the applicant was effectively a simple "end-user" of the false documentation provided by the 1st defendant with the assistance of the 2nd defendant. She points out that the judge accepted that the 2nd defendant had been enlisted into the fraudulent scheme by the 1st defendant because the 2nd defendant had computer skills which could assist in the production of the documents.

17. But Miss See's argument in this regard with respect proceeds on a wrong premise. The judge did not say that the applicant's criminal acts were of the same sort or in the same category as those of the 2nd defendant. There was no misapprehension by the judge as to the difference in the roles of the applicant and the 2nd defendant. Indeed in the passage above it is plain that the judge was alert to the different role played by the 2nd defendant.

18. Having acknowledged the different role of the 2nd defendant, the judge decided to treat him in the same way as he proposed to treat the applicant and the 4th defendant. Effectively he regarded the 1st defendant as distinguishable as the most culpable offender and thought that the others, although the 2nd defendant had a somewhat different role, should be treated together and in the same way.

19. In our view he cannot be criticised for taking this approach. There were many factors the judge had to consider and the different role of the 2nd defendant was simply one which did not, on the view taken by him, result in the 2nd defendant being treated more severely than the applicant or the 4th defendant.

20. We might add that even if it could be said that the 2nd defendant was wrongly regarded as being at the same level of culpability as the applicant and the 4th defendant, then that is a matter which simply operates to the advantage of the 2nd defendant. It does not mean that the sentence imposed in respect of the applicant was wrong in any way. It cannot be said in the circumstances of this case that the applicant was prejudiced by any overly lenient approach to the sentence of the 2nd defendant.

21. The applicant's totality of sentence of 18 months' imprisonment reflects a notional totality of starting point of 27 months' imprisonment. It is true the applicant obtained only some $18,000 cash and credit cards by way of these offences. But the offences he committed involved the use of forged documentation in a scheme to defraud finance companies. The offences formed a series and no doubt would have continued had not the final potential victim become suspicious of those documents and alerted the police. The sum of money together with the credit cards the applicant obtained formed a significant portion of the whole amount obtained by the fraudulent scheme.

22. On the facts of this case it could not be said that the applicant's sentence of a totality of 18 months' imprisonment was excessive. The 1st ground of appeal cannot succeed.

23. So far as the 2nd ground is concerned, Miss See says effectively that the applicant was promised a reduction in sentence by the judge due to the three-year delay in bringing the case before the court. All other defendants had received some such discount. The applicant did not.

24. At the time of sentencing the judge had said :

" Mr Wong has made the point on behalf of his client, which has been adopted by other counsel, that these charges have been hanging over the heads of these defendants for over 3 years now, through no fault of theirs but because of the prolonged investigation required. This has led to stress and I shall reduce sentences eventually to reflect this."

25. In any event in respect of the 1st defendant, the court reduced his various sentences, after his pleas were taken into account, by a further two months each to reflect the period of delay. The 2nd defendant's sentences may also have been reduced because of the period of delay by way of a lessening of the totality of sentence. The 4th defendant's sentence was reduced by one month to reflect the delay.

26. So far as the applicant is concerned, each sentence imposed was six months' imprisonment. As the starting point for each was nine months' imprisonment, it does appear that no reduction of sentence was made apart from that for the applicant's pleas of guilty. The judge made no mention of delay when sentencing the applicant. It appears from this that the judge may have overlooked the mitigating factor of delay he had promised to take into account for each of the defendants so far as the applicant was concerned.

27. Accordingly, we shall grant leave. Treating the hearing as the appeal, we shall allow the appeal to the extent that each sentence is set aside and a sentence of five months' imprisonment is imposed. We make the same orders as the judge as to the service of these sentences. The sentences imposed in respect of Charges 1, 2 and 4 are to be served consecutively. The sentences in respect of Charges 9 and 16 are to be served concurrently. The appeal is allowed to the extent that the applicant's overall sentence is reduced by three months' imprisonment. That leaves a totality of 15 months' imprisonment.