HKSAR v. WONG KA LING

CACC 325/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.325 OF 2003

(ON APPEAL FROM DCCC NO.259 OF 2003)

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REASONS FOR JUDGMENT

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Hon Hartmann J (giving the reasons for the judgment of the Court) :

Introduction

1. On 11 July 2003, after a hearing in the District Court before Judge Toh, the applicant was convicted on his own plea of three offences of possessing a false instrument with intent, contrary to s.75(1) of the Crimes Ordinance, Cap.200, and five offences of dealing with the proceeds of an indictable offence, contrary to s.25(1) of the Organised and Serious Crimes Ordinance, Cap.455. The applicant, a man in his forties who could not claim an unblemished record, received an overall sentence of six years and three months imprisonment. He sought leave to appeal against that sentence.

2. Having heard submissions, we dismissed the application. We now give our reasons.

The s.27 determination

3. Prior to the applicant pleading guilty to the eight offences, the prosecution applied to the judge in terms of s.27 of the Organised and Serious Crimes Ordinance ('the Ordinance') for a determination by her that the eight offences on the indictment constituted organised crimes; namely, that they were related to the activities of two or more persons who were associated together for the purposes of committing multiple crimes of a type specified in the Ordinance, the commission of those crimes involving what is described in s.2 of the Ordinance as 'substantial planning and organisation'.

4. The applicant, who was represented by counsel, did not object to the application. He conceded therefore that he committed the offences as a member of a larger organised criminal enterprise.

5. In light of this, the judge saw fit to impose sentences on the applicant which were more severe than would otherwise have been the case. The power to impose such enhanced sentences is contained in s.27(11) of the Ordinance which, in so far as it is relevant, reads :

" ... where a court is satisfied beyond reasonable doubt -

(a) that the specified offence was an organized crime ...

(b) ...

or where any such matter is agreed by the person convicted, the court shall have regard to such matter when it passes a sentence on the person for the relevant specified offence and may, if it thinks fit, pass a sentence on the person for that offence that is more severe than the sentence it would, in the absence of such matter, have passed."

The judge's approach

6. The judge approached sentence in this way. The offences to which the applicant pleaded guilty related to his criminal conduct in respect of three banks. The judge therefore determined sentence by reference to the applicant's conduct in respect of each bank.

7. Four of the offences ('the first group') related to the DBS Kwong On Bank. The applicant's criminal conduct in respect of that bank may be described as follows :

(i) On 7 August 2001, the applicant opened an account with the bank. He did so by using what he knew to be a forged identity card in the name of Lau Nam Wah and thereby committed the offence of possessing a false instrument with intent.

(ii) Three days later, on 10 August 2001, the account was credited with a sum of HK$1,835,000. A forged remittance application form drawn on another bank had been used by some other member of the criminal enterprise to effect the transfer. The credited funds were therefore the proceeds of an indictable offence.

(iii) The day after the funds were credited to the account, the applicant made three separate withdrawals from the account, removing all but a couple of thousand dollars. In making the withdrawals, the applicant committed three offences of dealing with the proceeds of an indictable offence.

8. In respect of each of these four offences, the judge took as her starting point a period of four years imprisonment, allowing a discount of one third in recognition of the applicant's plea of guilty. This reduced each sentence to 32 months imprisonment. But, having determined that the offences constituted organised crimes, the judge enhanced the severity of each sentence by 'about 30 percent', increasing each sentence to 41 months imprisonment. She ordered that the sentences in this first group were to be served concurrently with each other.

9. Three offences ('the second group') related to the Shanghai Commercial Bank. In respect of this bank, the applicant's criminal conduct may be described as follows :

(i) On 19 December 2001, the applicant opened an account with the bank. He did so by using what he knew to be a forged identity card bearing the name of a man named Wong Yu Lung. He thereby committed a second offence of possessing a false instrument with intent.

(ii) Eight days later, on 27 December 2001, the account was credited with a sum of HK$468,000. Payment was in the form of a cheque purportedly issued by a company. The cheque had been obtained by some other member of the criminal enterprise by fraudulent means. The credited funds were therefore the proceeds of an indictable offence.

(iii) On the same day that the funds were credited to the account, the applicant made two separate withdrawals from that account, one in United States dollars, removing all but a few thousand dollars.

10. In respect of this second group of offences, the judge took as her starting point a period of three years imprisonment. She allowed a discount of one third in recognition of the applicant's plea of guilty but then, as with the offences in the first group, enhanced the severity of each sentence by about 30 percent, increasing them to 31 months imprisonment. She ordered that the sentences in this second group were to be served concurrently with each other.

11. The final offence related to the Industrial and Commercial Bank of China. The applicant's criminal conduct in respect of this bank fell within the following circumstances :

(i) On 29 December 2001, the applicant opened an account with the bank. He did so by using what he knew to be a forged identity card, the card bearing the same name and number that he had earlier used to open the account with the DBS Kwong On Bank. He thereby committed a third offence of possessing a false instrument with intent.

(ii) Two days later, on 31 December 2001, a company called Pop Wind Industrial Ltd lost electronic communication with the outside world when the telephone cables to its offices were cut by some other member of the criminal enterprise. At about the same time a forged remittance application form in the sum of HK$352,000 was submitted to Pop Wind's bank. The forged document sought the transfer of the funds to the account that the applicant had opened with the Industrial and Commercial Bank of China. However, before effecting the remittance, Pop Wind's bank was able to ascertain that the application form was a forgery and no transfer was made.

12. In respect of this final offence, the judge took as her starting point a period of three years imprisonment. She reduced that sentence by one third in recognition of the applicant's guilty plea but again enhanced its severity by about 30 percent, increasing it to 31 months imprisonment.

13. If the sentences in the first and second group and the sentence for the final offence were to be served consecutively, it would have made for an overall sentence of seven years and nine months. However, in looking to the totality of the applicant's culpability, the judge reduced the overall sentence by 18 months to one of six years and three months. She did this by ordering that part of each sentence in the second group and a part of the sentence for the final offence were to be served concurrently with the sentences in the first group.

No guidelines

14. It has been stated in a number of authorities that there are no sentencing guidelines in cases of this kind. As Mayo VP said in HKSAR v. Mak Shing (unreported) CA 322/2001, this is because the circumstances of each case may vary almost infinitely.

15. In HKSAR v. Cheng King Lung [2002] 4 HKC 67, at 73, Stock JA made the following observations concerning the assessment of sentence in matters of this kind :

" Mr McGowan then asserts that the 6-year starting point for some of the offences (or as an overall starting point if that is what the judge took) was too high. He cites a number of cases in which greater sums were involved where similar or lower starting points were adopted. We note those cases, but we say in response that the sum involved is not the be-all and end-all of sentence. The sophistication of these offences, the very considerable planning which they involved, planning by numbers of players, the ongoing nature of the scam, the number of offences, the boldness and craftiness, embracing as some did the cutting of cables to particular offices; these are the distinguishing features of these offences, to which weight is to be given."

16. It is apparent that the judge in the present matter adopted the same approach. The question, of course, was whether, even if the correct approach was adopted, the sentence imposed was nevertheless manifestly excessive.

The applicant's contentions

17. For the applicant, Mr Mughal asserted that, in the light of all the circumstances, the starting point of four years adopted in respect of the first group of offences was too high. This error, he submitted, having regard to the manner in which the judge came to a determination of the final totality of sentence, led to the total sentence itself being manifestly excessive.

18. By way of an opening salvo, Mr Mughal drew our attention to the fact that, while four years had been adopted as a starting point in respect of the first group of offences, the judge had adopted three years as her starting point in respect of the remaining offences. That inconsistency, as he described it, was itself evidence, he said, that the four years starting point was excessive. We found no inconsistency. The judge set a higher starting point in respect of the first group of offences because, although the sums involved in these type of cases are not the sole yardstick, they are nevertheless relevant and the sums involved in this first group were substantially larger than in the other two. In our view, the judge was correct to take this into account.

19. Mr Mughal's principal assertion, however, was that the judge failed to give due weight to all relevant matters, more particularly, the limited time over which the applicant's criminal conduct took place, the limited value of the sums involved and, of importance, that the applicant was very much an underling, indeed a stooge, who was exploited by others and paid a pittance for the risks he took.

20. As to the issue of time, the admitted evidence revealed that the applicant's criminal conduct spanned a period in excess of four months and, of course, in that time involved the opening of three separate accounts in three separate banks. Far from some temporary involvement, it is plain that the applicant played an important role in the execution of these organised crimes and did so over an extended period.

21. Nor did we find any substance in the contention that the limited value of the sums involved dictated a lesser sentence. As Stock JA said in HKSAR V. Cheng King Lung (supra), the value of the sums involved is not the be-all and end-all of sentence. The judge must take a broader view of the nature of the offences and this quite clearly is what the judge in the present case did. In any event, as the judge noted, the applicant's conduct alone directly resulted in a loss of over HK$2,000,000.

22. Finally, Mr Mughal submitted that the judge had failed to make due allowance for the subservient role played by the applicant. In this regard, he laid emphasis on the statement of a police inspector made in support of the prosecution's application under s.27 of the Ordinance for a determination by the judge that the applicant's offences constituted organised crimes. In that statement, the inspector described how senior members of criminal syndicates recruit 'stooges' to carry out the risky work of opening bank accounts with forged documents and removing funds from those accounts.

23. The judge, however, while recognising the hierarchical structure invariable in such syndicates, took into account the 'pivotal' role played by persons like the applicant. As she said -

" What is also clear is that the whole operation would not be able to come into fruition without the assistance of these 'stooges' or 'front men' like the defendant. Although these people may be low in the hierarchy of the syndicate, their roles are of pivotal importance in the success of these enterprises."

24. In the present case, it is apparent that, even if the applicant was an 'underling', he was an active one, engaged in three separate enterprises. These enterprises, as we have said, spanned a period of more than four months. The truth of it is that, whatever his rank in the criminal enterprise, the applicant did play an important and sustained role in its execution.

25. In our view, none of the matters advanced by Mr Mughal, taken individually or collectively, gave us any concern that the sentence of six years and three months imposed on the applicant was impeachable.