HKSAR v. CHOI WING MAN AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.734
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. The facts of this case appear in the judgment which was delivered on 16th July 1998, relating to applications for leave to appeal against conviction. In the result, D1's conviction on the first charge was quashed, but the conviction for the more serious offence (charge 2) was upheld. D2's application failed in relation to both charges. D1 and D2 now seek leave to appeal against sentence.

2. Judge Wilson, in passing sentence, commented that this was a sophisticated and complicated fraud which was prevented from taking place by a highly efficient police operation. He concluded that a sentence of 5 years' imprisonment for these two offences was appropriate and made the sentences concurrent, having regard to the fact that, although they were quite separate offences, they were part of one overall scheme.

3. Turning to the position of D2, we are quite satisfied that the judge was entirely right in his assessment of the case and of the sentence that he concluded was appropriate for the two offences taken together. Mr. Macrae, for D1, has described the case as an old-fashioned swindle in the making. He is no doubt right, but the potential losses were enormous. The ground of appeal, which is advanced by Mr. Kynoch, for D2, namely that the judge failed to consider that this was the first offence of dishonesty committed by D2, we think must have been put forward, putting it as mildly as we can, with tongue in cheek. There is no merit in that argument. D2's previous record includes a 12-year prison sentence for trafficking in dangerous drugs.

4. As for D1, who was a man of previous good character and who has now partly succeeded on his appeal against conviction, we are of the opinion that these two factors enable us to make some distinction between the two Applicants.

5. In these circumstances, we shall give leave to D1. Treating this hearing as the appeal, we reduce his sentence on charge 2 from 5 years' imprisonment to 4 years' imprisonment.

6. There being no merit at all in D2's application, it is dismissed.