HKSAR v. WONG ON NI

CACC 164/2020

[2021] HKCA 1244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 164 OF 2020

(ON APPEAL FROM HCCC NO 113 OF 2020)

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J U D G M E N T

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1.  The applicant pleaded guilty to sixteen counts of fraud, contrary to section 16A of the Theft Ordinance, Cap 210, (Counts 1 to 16) and one count of dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and 25(3) of the Organized and Serious Crimes Ordinance, Cap 455, (Count 17). On 17 September 2020, Toh J (the judge) sentenced the applicant to 12 years’imprisonment.

2.  On 30 September 2020, the applicant applied for leave to appeal against her sentence, without specifying any grounds of appeal.  Despite a direction from the Court in January 2021 to file perfected grounds of appeal and any written submissions in support of her application, she has failed to do so.  However, the applicant at the leave hearing claimed that she had never received the letter.

3.  The applicant appears in person, having had legal aid refused on 26 November 2020.

4.  On 20 August 2021, the applicant filed a letter requesting an adjournment of her leave application.  This was only a few days before the hearing of this application, which had been set down on 29 January 2021.  She claimed that since July of this year she has tried to obtain legal assistance in respect of her case but had been unsuccessful.  She mentioned that she had approached other lawyers about her case but it appears that they did not encourage her to take it further.  It is apparent that she has made no effort to support her leave application and her application for an adjournment was refused.

5.  The counts of fraud are similar in nature, in which the applicant claimed to engage in trading luxury goods, enticing victims to supply her with luxury goods for sale, or to invest in a scheme to buy luxury goods from suppliers with the applicant undertaking to resell them for a profit and return the proceeds of sale.  The money laundering count is distinct from the fraud counts and involved the applicant laundering about $126 million through a bank account in her name between October 2014 and September 2016.

6.  It was submitted in mitigation that the applicant was age 29 at the time of sentence.  She suffered from diabetes and her mother was unable to work due to injuries she sustained after a fall.  Counsel for the applicant emphasised that the applicant pleaded guilty at the earliest opportunity, accepted full responsibility and had tried to repay the victims.  It was also alleged that the applicant was under the influence of her then boyfriend and had since taken positive steps to rehabilitate herself.  The applicant’s prior convictions for shop theft in 2006 and 2009 were not taken into account.

7.  The judge treated the circumstances of the case as not strictly involving a “breach of trust”, although she considered there was some degree of trust from the victims.  She noted that the amount of money and the value of the items entrusted with the applicant, resulted in a substantial loss of $76 million to the victims.  She referred to the sentencing guidelines in HKSAR v Cheung Mee Kiu [2008] 1 HKC 113, where a breach of trust resulting in a loss of over HKD $15 million meant more than 10 years’ imprisonment, and from there, the judge carefully considered a wide range of factors in deciding the applicant’s overall culpability namely the deceptive and prolonged conduct of the applicant, the multiplicity of offences, the number of victims and the substantial losses to the victims.  She added 3 months to the sentences on Counts 4 to 15 for the fact that these offences were committed whilst she was on police bail. 

8.  The judge took the approach in sentencing the applicant as suggested in HKSAR v Chong Hung Shek [2019] 3 HKC 284, by passing a sentence on each individual count and then applying the totality principle. 

9.  The table below sets out the brief particulars of each count together with the corresponding sentence.

Count	Date	Circumstances	Total Loss	Starting Point	After one third discount for guilty plea
1	August 2016 September-December 2016	The victim was the sole proprietor of a watch retail shop and had agreed to order watches through the applicant worth HKD $18,703,333.7.  The applicant only gave watches in the amount of HKD $80,000 and returned HKD $2,138,227.	HKD $16,655,106.7	10 years	6 years 8 months
2	March 2016	The victim gave cheques of HKD $1,500,000 to invest in the trade of iPhones.	HKD $1,500,000	2 years 6 months	1 year 8 months
3	January 2017	The victim, having insufficient funds, asked five others to join in the trade of luxury watches and iPhones, where the applicant promised return of costs and profit.  In the end the applicant only repaid HKD $185,700	HKD $3,317,400	4 years	2 years 8 months
4	September 2017	Male victim parted with iPhone 7’s worth HKD $263,208 and in cash of HKD $296,792, totalling to HKD $560,000.	Male Victim: HKD $945,480 Female Victim: HKD $829,310	18 + (3) months*	1 year 2 months
5	September 2017	Male victim parted with 4 watches with a total value of HKD $475,320.		18 + (3) months*	1 year 2 months
6	September 2017	Male victim parted with a watch worth HKD $110,160.  Applicant only repaid  HKD $20,000 to the male victim.		12 + (3) months*	10 months
7	September 2017	Female victim parted with 2 watches totalling to HKD $189,310.		12 + (3) months*	10 months
8	October 2017	Female victim made a credit card payment of HKD $640,000 to invest in the applicant’s scheme.		18 + (3) months*	1 year 2 months
9	December 2017-January 2018	The victim placed three orders for watches, the applicant failed to deliver.  The applicant admitted to the victim that she did not use the monies to pay for watches.	HKD $947,050	2 years 3 + (3) months*	1 year 8 months
10	November 2017-January 2018	The applicant promised the victim to return profits in one to two weeks.  The victim gave HKD $11,400,949 for 71 luxury watches.  The applicant only returned partial payments of HKD $2,212,460.	HKD $9,478,409	7 years + (3) months*	4 year 10 months
11	January 2018	The victim parted with 2 watches worth HKD $289,920.		12 + (3) months*	10 months
12	October-November 2017	The victim paid HKD $351,796 for 7 watches and the applicant returned HKD $102,000.	HKD $249,796	12 + (3) months*	10 months
13	March 2017	The victim made partial payments of HKD $104,000 and no payment was returned.	HKD $104,000	12 + (3) months*	10 months
14	May-August 2017	The victim paid HKD $150,000 for a Rolex watch and was required to provide monies or purchase merchandising items.	HKD $649,942	12 + (3) months*	10 months
15	September-October 2017	The victim purchased 7 watches for HKD $544,942.		15 + (3) months*	1 year
16	December 2015-March 2016	The victim provided capital for merchandising items whereas the applicant was responsible for sourcing and to return costs and profits in 3 days.  The applicant admitted under caution to deceiving the victim.	RMB 30,900,000 and USD $1,000,000	12 years	8 years
17	October 2014-September 2016	A total sum of HKD $149,961,835.40 was deposited into the applicant’s account through 554 transactions from 81 parties and further total sum of HKD $3,500,000 was deposited into the applicant’s account from 3 of the victims of the fraud counts.	Net Deposit HKD $126,002,387.47	6 years	4 years

*3 months added for aggravating factor of committing the offence whilst on police bail

10.  After passing individual sentences on each count, the judge applied the totality principle and ordered that the sentences on Counts 1, 2 and 3 be served concurrently, making a total sentence of 6 years and 8 months’ imprisonment; the sentences on Counts 4, 5, 6, 7, 8 and 9 be served concurrently, making a total sentence of 1 year and 8 months’ imprisonment; the sentences on Counts 10, 11, 12, 13, 14 and 15 be served concurrently, making a total sentence of 4 years and 10 months’ imprisonment.  She then made 1 year of the concurrent sentences on Counts 4 to 9 of 1 year and 8 months’ imprisonment consecutive to the concurrent sentences on Counts 1 to 3 of 6 years and 8 months’ imprisonment, giving an aggregate of 7 years and 8 months’ imprisonment.  She next made 2 years and 4 months of the concurrent sentences on Counts 10 to 15 of 4 years and 10 months’ imprisonment consecutive to the sentence of 7 years and 8 months’ imprisonment, giving an aggregate of 10 years’ imprisonment.  She finally made 2 years of the sentence on Count 8 of 8 years’ imprisonment, consecutive to the sentence of 10 years imprisonment, resulting in a total sentence of 12 years’ imprisonment for the fraud counts.  As for the money laundering count the judge ordered that the sentence of 4 years’ imprisonment be served concurrently with the total sentence of 12 years’ imprisonment for the fraud counts.

11.  The applicant makes three complaints about her sentence.  She submits that the judge erred in making some of the sentences consecutive; that the total sentence of 12 years’ imprisonment was excessive; and that there are other cases of a similar kind where the sentence imposed was considerably less than the one she received.  In respect of this latter complaint, the applicant was unable to identify any particular case.  However, as has been repeatedly stated by this Court, there is little, if any, utility in comparing sentences of other cases, for no two cases are alike.  The issue that has to be addressed on appeal is whether the sentence passed was just and fair and in accordance with relevant sentencing guidelines and principles.

12.  Mr Joe Hui, for the respondent, opposes the application on the basis that the total sentence was neither wrong in law, nor manifestly excessive, considering the relevant sentencing authorities and the fact that the judge had already leniently adjusted downwards all of the starting points well below the tariffs for “breach of trust” cases.  It was also noted that it was generous for the judge to have allowed the money laundering count to be served concurrently, without any allowance for consecutiveness. See HKSAR v Boma Amaso [2012] 1 HKC 504.

13.  In sentencing the applicant, the judge, while making comments about the overall criminality involved, first determined the sentence that should be imposed for each individual offence and then went on to consider the question of totality in deciding what part of the sentences for the second and further offences were concurrent and what part, if any, were consecutive. 

14.  The judge’s approach in sentencing was correct and the resultant sentence of 12 years’ imprisonment appropriately reflected the criminality involved for the multiplicity of offences.  The fraud offences were committed over a period of about 2 years from December 2015 to January 2018.  The applicant was first arrested on 25 January 2017 and yet she continued to offend as reflected in Counts 4 to 15, which took place while she was on police bail.  The guile used and dishonesty visited upon the innocent victims was calculated and prolonged.  The applicant during this period was an incorrigible offender, who misappropriated the items or monies entrusted to her and thereby incurred huge losses to the victims involved.  Quite apart from the fraud offences, the applicant also committed a very serious offence of money-laundering, the sentence for which deserved to be given a consecutive element to the sentences for the fraud offences, but given the totality of the sentences the resultant sentence of 12 years’ imprisonment was appropriate in the circumstances of the case. 

15.  There is no substance to the applicant’s complaint that the judge erred in making some of the sentences partially consecutive and that the overall sentence was excessive.

16.  It is appropriate to briefly comment on the concept of a “breach of trust”, given the judge’s characterisation of the case.  It is commonly understood that a breach of trust refers to the circumstance where the offender is in a position of trust who had used that privileged and trusted position to steal or defraud others.  See R v John Barrick (1985) 81 Cr App R 78.  The characterisation that the present case was not strictly a “breach of trust” comes from an opinion expressed in HKSAR v Au Wing Kun, unrep., CACC 391/2006, 22 June 2007, at [6], when dealing with a case where the offender had been entrusted with a large sum of money to purchase stocks on behalf of various investors. The qualification that it was “not strictly” a breach of trust case is equivocal and seems to leave open the possibility that it could have involved a breach of trust.  It was noted that the applicant was not acting in a professional capacity but rather had befriended his victims and was in reality “no more than a conman practised in the art of deceit.”  The sentiment expressed in Au Wing Kun was addressed by this Court in HKSAR v Cheung Curtis Ka Kim, unrep., CACC 141/2017, 22 January 2018,  at [25] to [29], in which Macrae JA (as Macrae VP then was) attributed the characterisation of “not strictly” a breach of trust case on a more informal arrangement between friends.  The Court held in the circumstances of the case that there was a breach of trust where persons entrust sums of money in the hands of someone they believed to be an experienced financial manager and investor and whom they trusted would handle their money in a particular way.

17.  It follows from what I have said that I refuse the applicant leave to appeal against her sentence.

18.  The applicant is reminded of her right to renew her application for leave to the Court of Appeal, but she is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of her application.