HKSAR v. CHAN CHI HUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

Criminal Appeal
1998 No.214

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court)

1. The applicant in this matter pleaded guilty to one charge of theft. That charge was particularized that he, with another unknown person, on 27th December 1997, in Hong Kong stole a chose in action, namely a debt of $6,030,000 by Hong Kong Bank to Tang Shuk-yi in Tang Shuk-yi's account Number 546-3-11333-888. There were a number of conspirators involved, it appears, in this trickery. They, by various means without authority, had $6.03m transferred from the victim's account to the 2nd defendant's account from which it was then withdrawn.

The part played by the applicant is set out in the agreed facts as follows. At about 10:40 a.m. on 27th December 1997, the applicant approached the Tsim Sha Tsui Branch of Hong Kong Bank, produced a letter of authorization signed by the victim, instructing the bank to transfer the sum involved to another Hong Kong Bank account which was the account held by the 2nd defendant at trial. In the letter of authorization, which the victim denied issuing, the applicant was purported to have been authorized to effect the transfer. After several checks by different staff of the bank as to the authenticity of the signature, including contacting of persons by telephone, the transfer was authorized and was completed at about 12:15 p.m. The sum was transferred to the 2nd defendant's Hong Kong Bank account. The applicant was photographed by the staff of the bank who had activated a surveillance camera during the process of transfer.

The trial judge set out in his reasons the view he took of the facts that had been placed before him saying:

"Now, it is clear from the facts that this is a very sophisticated scheme and even on your own admissions to the police, you were aware of the modus operandi of the scheme. You told the police that you knew that the calls from the bank would be intercepted and that you were to effect this large withdrawal from an innocent person's account.

Even if I accept you are not the mastermind, you played a very significant role in this scheme, for without you, this nefarious crime would not see the light of day.

You have a poor record of ten previous convictions and eight similar.

I accept that your plea and co-operation with the police shows some remorse on your part and do warrant a discount in your sentence. This is one of the worst cases of this kind where a bank and innocent account holders are cheated out of their money, and these are the people who should be protected from people like you.

The sentence I will give you will send a message to those tempted to participated in these crimes to desist, and the bank in this case has lost about $6m so I consider an appropriate sentence in this case after trial will be 5 years' imprisonment, but because of your plea I reduce it to 4 years' imprisonment."

2. It is not suggested that that sentence of five years was excessive and, indeed, it could not properly be so suggested. It was, as the judge noted, a bad offence. It was a deliberate and planned offence and the applicant was perhaps lucky that the judge did not take a higher starting point than five years. However, the judge then, when dealing with the discount to be given for plea, gave a discount of one year, i.e. 20%. As we have repeatedly said, judges are not bound to give the suggested one-third discount for plea but if they in their discretion, decide not to do so, they must indicate why they are not so doing in their Reasons for Sentence, which allows this court to make a proper assessment of the propriety of the refusal. The judge gave no reasons of any sort. That being so we must follow the practice which we have adopted in the past and give a discount appropriate to a plea of guilty.

3. The application is allowed. The hearing of the application is treated as the hearing of the appeal. We give the customary one-third discount, which means that we vary the sentence imposed to one of three years and four months.