R. v. LARM TAT MING

1996, No.137
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Nazareth, V.-P. (Giving the Judgment of the Court) :

1. The applicant Larm Tat Ming ("D1") applies for leave to appeal against conviction and sentence. As the first of four defendants, he was convicted by HH Judge Davies in the District Court on 7th February this year of three offences of conspiracy. The first conspiracy was to handle stolen goods; the second was to offer advantages to customs officers so that those goods, which were to be stolen cars, could be smuggled out of Hong Kong; and the third conspiracy was to export unmanifested goods, meaning smuggling out those goods. On 22nd February, he was sentenced by Judge Davies to imprisonment for two years and nine months on each of those three counts to run concurrently.

2. The facts stated shortly are these. Information was received by the ICAC from an informer who has been referred to in the proceedings below as D77. The information was that someone was looking for cars to smuggle to China. The ICAC assigned one of their officers ("PW1") to investigate. PW1 was introduced by the informer to D1 the applicant, and in time he came to listen to telephone conversations between D77 and D1 and he also got himself introduced to two of the other defendants in the case in the role of a supplier of vehicles. He then had numerous telephone conversations with D1, occasionally with one of the others, and from time to time had face to face discussions with D1 and the other defendants. Virtually all the telephone conversations were taped and all but one of seven meetings were also taped. The transcripts of those tapes, of considerable volume, were put in evidence.

3. During his conversations with PW1, D1 indicated that he was part of a group involved in smuggling stolen cars into China and he requested PW1 to supply stolen cars to him. He said customs and excise officers at the Man Kam To border crossing had been bribed to facilitate smuggling activities by his group. With D2, the 2nd defendant, he entered into negotiations to purchase stolen vehicles from PW1. Most of the meetings and telephone conversations were lengthy affairs involving much hard-bargaining and covering important practical details like the price and models of the vehicles, when and where they could be inspected, when and where they could be loaded into containers and by whom and so forth. On two occasions, D1 and D2 actually waited in the Tuen Mun area for the delivery of vehicles. But as one would expect, no vehicles were actually delivered, nor was any money paid.

4. D1 gave evidence in his defence that there had been a conspiracy between him D2 and one "Ah Fu", who was named in the conspiracy charges. But he said the conspiracy was to defraud a potential buyer from China who had shown an interest in buying Mercedes cars from Hong Kong. The scheme of the conspiracy was that deposits would be taken from this buyer, but he would simply be shown the cars from a distance and they would not be supplied to him. His defence in a word was that he was a swindler but not a smuggler. Not surprisingly, the judge rejected that unlikely story which was even more incredible in the context of the detailed circumstances and the taped recordings of D1's conversations.

5. The primary issue identified by the judge was whether the protracted negotiations and arrangements were in pursuance of a genuine agreement to smuggle stolen cars into China in the way claimed or were merely persistent attempts by the defendant to obtain possession of stolen cars to display to the buyer mentioned or indeed if there was any reasonable alternative explanation other than the conspiracy charge. Having considered all the evidence against each defendant separately, he found that there was no reasonable explanation for their behaviour other than that D1 and D2 conspired with each other and with the other persons named to commit the conspiracies specified. He accordingly found them guilty of all three charges.

6. In his notice of application for leave to appeal, his additional reasons and his further supplementary reasons (originally written in Chinese characters, the typed English versions of which run to over 14 pages), the applicant has raised numerous matters mostly of a diffuse nature. He repeated two of them before us today. I will mention those first. He complains that there was no evidence of how the transcripts of the tape recordings were obtained. He asks whether someone had listened to the tapes. He said there should have been evidence from people to identify his voice. His point, which was made in greater detail in his written reasons, is that PW1 at one point said that he had had the tapes in his possession all along; that being so, he asks, how was it possible for the stenographers and secretaries to transcribe them. We find no merit in this point, which does not appear to have been taken below, nor in the associated complaint that evidence should have been procured from particular individuals to identify his voice. It is plain from the overall circumstances and the general evidence that the tapes could only have been those which recorded the conversations and the discussions, and that he had said that which was attributed to him.

7. Proceeding to his other points, he complains in several places that the judge was unfair, biased and prejudiced. There is nothing to support those allegations other than that the judge reached conclusions adverse to the applicant. We reject the complaint.

8. The applicant also complains, among many other points, of the absence of the informant D77 who he complains was not called to give evidence. He complains also of non-production of D77's and PW1's statements, of the prosecution's failure to produce any vehicles that were stolen, of the non-appearance of any customs officers who had been bribed and so on. These, like many of his other points, reveal a fundamental failure perhaps understandable on the part of a layman to appreciate the essential nature of a conspiracy as an agreement in the present circumstances to commit specified offences as distinct from the offences themselves.

9. Upon that basis, it can be seen that there is nothing in these grounds since there was ample evidence that was sufficient, if accepted as it was by the judge, to establish the three conspiracies. It is not surprising that D77 was not called, given that he was an ICAC informant, nor was it for the prosecution to put in evidence the statements of D77 and PW1. It is unlikely, if simply presented by the prosecution, that D77's statement would have been admissible. On the contrary the applicant's counsel could and would presumably have sought to have those statements produced had there been anything to be gained thereby. As to stolen vehicles and customs officers, it was no part of the prosecution case that any vehicle had been actually stolen or officers actually bribed in pursuance of the conspiracies. The prosecution case was merely that an agreement relating to them had been reached.

10. We do not find it necessary to adumbrate all the other matters raised by the applicant, many discursive, others that perhaps do have a point to them, but not such as to affect the judge's conclusion, either individually or cumulatively. There was ample evidence before the judge which if accepted was sufficient to establish the conspiracies and as we have said the judge accepted that evidence having seen and heard the witnesses, listened to some of the tapes and had the transcriptions of others before him. Nothing the applicant has placed before us, or that we have seen in the appeal bundle warrants intervention with the judge's conclusions, or leads us to doubt them.

11. We therefore can see no reason to grant the application for leave to appeal against conviction.

12. Turning then to the application for leave to appeal against sentence, the applicant complains, first of all, that he was wrongly sentenced as the master-mind or chief plotter. He argues that the judge accepted the evidence of PW1 and that such evidence included (as indeed it did in cross-examination) an admission by PW1 that he had the impression that D1 the applicant was acting for a boss. Against that the transcript also shows that PW1 was not clear about who was the boss and having regard to that, the other evidence and D1's conversations in the tapes, there was more than sufficient evidence from which the judge could infer a leading role by the applicant.

13. The applicant also contends that having been in prison for the earlier part of the conspiracy period, he could not have been the chief plotter or master-mind. In the context of his conviction he submitted that he likewise could not have been a conspirator. We do not accept those submissions. There is cogent evidence of an active role from the taped conversation to mention only one aspect of the evidence.

14. Other points the applicant has touched upon turn upon matters relied upon in his application for leave to appeal against his conviction and which we have already rejected.

15. We have, however, to refer to the way in which the judge reached his sentence. Addressing the substantive offences of dishonest handling, bribery and smuggling, he took a starting point of four to five years. But turning to the particular circumstances before him, he felt that the proper starting point after trial was three years and six months. He then said that this was a case in which the defendant from the very outset was negotiating unwittingly with an ICAC paid informant and an ICAC undercover agent. Where such agents provocateur are involved, he said the Courts have considered it right to take that into account by way of a reduction in sentence and therefore he did so by giving a discount of nine months.

16. We think the applicant was very fortunate in receiving that discount for clearly the initiative originally came from the group to which he belonged and in no way were they encouraged in participating in the conspiracies by PW1. However that may be and not adopting the precise route the judge used in arriving at his sentence, we think that clearly the sentence of two years and nine months as a totality for all three offences cannot be said to be manifestly excessive or wrong in principle. We see no reason to interfere.

17. It follows that, for all the reasons we have given, the applications both for leave to appeal against conviction and sentence must be refused.