HKSAR v. CHAN WANG KWOK

CACC39/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.39 OF 2004

(ON APPEAL FROM DCCC NO.1184 OF 2003)

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J U D G M E N T

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Hon Lunn J (giving the judgment of the Court) :

1. The applicant seeks leave to appeal against sentence.

THE CHARGES

2. On his pleas of guilty in the District Court to one charge of a conspiracy to make false instruments, contrary to s.71 and 159A of the Crimes Ordinance, Cap. 200 and two charges of conspiracy to use false instruments, contrary to s.73 and 159A of the Crimes Ordinance, Cap. 200 the applicant was convicted and sentenced to 14 months' imprisonment on each of the charges, all of which sentences were ordered to be served concurrently.

THE FACTS

3. The factual basis admitted by the applicant and accepted by the court upon which sentence was passed was that the three charges arose out of the applicant's business in which he provided services to clients, inter alia to apply for emigration to countries overseas. In Charge 1, the applicant conspired with Tsang Kwok Shing, a District Manager of City College who also worked at Leung's Institute, between 2 August 1996 and 31 May 1998 to make false academic certificates and diplomas purportedly issued by those two bodies with the intention that others accept them as genuine. In particular, it was understood between the conspirators that the false certificates and diplomas so produced would be used by the applicant in support of applications made by his clients for emigration to Canada. In the case of one of the charges, the client had not attended any course; in the case of the other the client, it is said, she had attended the course, but not at the institute where the certificate was issued. Nevertheless, the applicant agreed to pay Tsang the amount of monies that would have been paid as tuition fees for attendance at those courses as if those clients had attended the courses.

4. Charges 3 and 4 detail related conspiracies between the applicant and his respective individual clients who sought to emigrate and whom the applicant assisted by the provision of false certificates. In each case, the applicant prepared and submitted to a Canadian Consulate an Emigration Application Form, which asserted that the respective applicant was possessed of academic qualifications, which assertion was false. The applicant provided each of his clients with the original false documents so that they could present those documents in person to the consulate in question. They did so.

5. The conduct, the subject of Charge 3, concerned a conspiracy between the applicant and his client in July 1997 to use a false certificate issued by Leung's Institute dated June 1992 asserting that the client had attended Form V at Leung's Institute in the preceding nine months. The client had not attended that course.

6. The conduct, the subject of Charge 4, concerned a conspiracy between the applicant and his client in April 1998 to use four false certificates purporting to evidence the fact that the client had attended various courses between September 1979 and September 1981, including bookkeeping, typing and Mandarin. The client had not attended such courses at the Institute.

7. In both of the conspiracies the subject of Charges 3 and 4, the applicant had been the instigator of the conspiracy in consequence of his advice to his clients that their respective academic background was insufficient for them to succeed in their applications for emigration to Canada.

REASONS FOR SENTENCE

8. In his Reasons for Sentence, Judge Whaley indicated that in his judgment the offences of which the applicant had been convicted were serious offences. In particular, he noted that they concerned false representations made to Canadian Immigration Authorities, which had the effect not only of disadvantaging honest emigration applications made by Hong Kong citizens but also of undermining the reputation of Hong Kong and, in particular, the trust to be reposed in its certificates, diplomas and emigration consultants in its dealing with such foreign jurisdictions. However, the court accepted that the applicant did not charge other than his normal fee to the two clients with whom he was concerned respectively in Charges 3 and 4, albeit that the applicant had a "profit motive" because his fees were "success based", failure resulting in a charge of disbursements only.

9. The judge stated that, in his judgment, the sentence of 10 months' imprisonment imposed upon the co-conspirator Tsang in Charge 1 for two similar conspiracies with another emigration consultant Chau Lai Ping and the sentence of 20 months' imprisonment imposed on Chau were extremely lenient. He stated that he proposed to impose the sentence he determined to be appropriate.

10. The judge took a global view of all three offences of which the applicant had been convicted and took a starting point of two years' imprisonment. From that starting point, he discounted sentence by one-third for the defendant's cooperation with the authorities and his pleas of guilty. The sentence was discounted an additional one month to reflect the fact that the offences were said to be stale and the applicant's clear record. A further month of imprisonment was discounted to reflect the time the applicant had spent in custody in Canada awaiting extradition and prior to his voluntary return to Hong Kong. In the result, a total sentence of 14 months' imprisonment was imposed.

THE APPLICANT'S GROUNDS OF APPEAL

11. On behalf of the applicant, Mr Westbrook, SC, submits that the starting point for sentence, namely two years' imprisonment was manifestly excessive having regard to the criminality of the applicant and the sentences imposed by other judges upon co-conspirators in respect of related conspiracies. Secondly, it is said that the learned judge gave insufficient discount in sentence, having regard to (i) the applicant's said clear record with positive character references, although in the course of the appeal Mr Westbrook acknowledged that the learned judge had given a discount in that respect; (ii) the fact that the applicant was in custody in Canada for 36 days; and (iii) the staleness of the offences and the delay in bringing the applicant to trial.

THE RESPONDENT'S SUBMISSIONS

12. In support of his written submissions that the starting point taken by the learned trial judge of two years' imprisonment was not excessive Mr William Tam, for the respondent, in his useful written submission invited the court to note that in respect of Charge 1, the agreement reached by the applicant with his co-conspirator Tsang was one which involved the latter, in his position as a District Manager of City College committing a breach of trust by agreeing to provide false certificates and diplomas from that college and the Leung's Institute. Secondly, that in respect of all three conspiracies, the object was to defraud foreign consulates thereby jeopardizing the integrity with which such certificates produced in Hong Kong would be regarded by those overseas bodies. Thirdly, that the applicant was motivated by personal profit gain. Finally, that it was the applicant who had initiated the conspiracies in which his clients became involved in Charges 3 and 4.

13. It is submitted on behalf of the respondent that the sentences imposed on other related conspirators in related conspiracies are not relevant for the purpose of this appeal. It is submitted, in particular, that the judge could well be right that the sentence of 10 months imprisonment imposed on the co-accused in Count 1, Tsang Kwok Shing in June 1999 is an extremely lenient sentence. Tsang pleaded guilty and, having given evidence in the trial of his co-conspirator, Chau Lai Ping the court discounted his sentence by 50%. On the conviction of Chau for the same conspiracy, she was sentenced to 20 months' imprisonment. Tsang and Chau were convicted in respect of two conspiracies to make false instruments encompassing, in total, the period September 1995 to October 1997. The agreement called for the production by Tsang of false certificates and diplomas in the name of City College or Leung's Institute. Over that period, Tsang accepted monies from Chau on twenty-nine occasions for the production of such documentation for subsequent use in presentation on behalf of potential emigrants to a Canadian Consulate. Mr Westbrook invites this court to have regard to the "twenty-nine", as opposed to the two occasions, that false documents were presented to consulates.

THE APPROPRIATE SENTENCE

(i) Starting point

14. In support of his submissions that the judge had taken a starting point that was manifestly too high Mr Westbrook referred this court, as he did to the learned district court judge, to the judgments of this court in the Attorney General v. Tai Chin Wah, [1994] 2 HKCLR 81 and HKSAR v. Chim Pui Chung, CACC402/1998 (unreported). In Tai Chin Wah, this court was concerned with an application for review of a total sentence of six months' imprisonment ordered to be suspended for 12 months imposed upon the respondent who had pleaded guilty to five charges, which charges arose out of the respondent uttering to the Law Society of Hong Kong a forged certificate purporting to assert that he had passed the Solicitors' Final Examination of the Law Society of England and Wales and of related matters. This court indicated that an appropriate starting point after trial would have been 18 months to two years imprisonment.

15. In Chim Pui Chung, this court was concerned, inter alia, with an appeal against a sentence of 31/2 years' imprisonment imposed upon that applicant in respect of his conviction for conspiring with others to make false instruments, namely Forms of Transfer, Sold and Bought Note documents to cause the transfer of shares from the names of a multiplicity of persons into the name of one person. This court stated that whilst the motive for this conduct had not been established, it accepted that it was an elaborate and calculated attempt to mislead the authorities, and must have been intended to achieve some substantial benefit. In the result this court indicated that a starting point of 15 months' imprisonment would have been appropriate.

16. We do not find either case of any particular assistance in determining the appropriate starting point in this case. In particular, neither case was concerned with the production of false documentation to be used to trick the consulates of foreign governments in relation to emigration applications with the consequent ramifications to the integrity of documentation produced in Hong Kong.

17. Clearly, the judge was correct when he stated, relying upon R. v. So Hung Lee [1986] HKLR 1049, that notwithstanding the sentences imposed upon defendants in related cases, it was his duty to pass the sentence he deemed appropriate in this case. We are satisfied that in taking a starting point of two years' imprisonment, the judge was not in error.

(ii) Discount from the starting point

18. On behalf of the applicant, complaint is made that no discount was given to the applicant for his clear record with positive character references, albeit that Mr Westbrook in oral argument acknowledged that such discount was given, nor for the staleness of the offences and delay in bringing him to trial. In fact, as Mr Westbrook acknowledged in court, the judge specifically did give a discount in respect of the "rather stale offences, as submitted, and the defendant's effectively clear record". That discount was one month's imprisonment. The discount in respect of the applicant "effectively clear record" was unwarranted. This court has made it clear on a number of occasions that that factor of mitigation is usually subsumed within the one-third discount for a timely plea. In HKSAR v. Yan Wai Ming, CACC417/2002 (unreported) in the judgment of this court given by Stuart-Moore, VP it was stated :

"In the days before the discount of one-third on timely pleas of guilty became standard practice, previous good character used to be one of many factors which judges would take into account in deciding what discount to give on a plea of guilty. The one-third discount is usually, as we have said on numerous occasions, to be taken as the high watermark of the discount unless there are very special factors to be taken into account."

19. Of the complaint that the learned judge had allowed only one month's discount in respect of the 36 days during which the applicant had been detained in Canada pending his return to Hong Kong we are satisfied that there are no grounds to impugn the exercise of what was clearly the discretion that the judge had.

20. Of the complaint of delay in bringing the proceedings and the consequence staleness of the offences, we were told that the applicant had left Hong Kong in 1998 and returned to live in Canada where he was detained in October 2003. Clearly, therefore, no blame in terms of delay or staleness attaches to the Authorities.

CONCLUSION

21. This application for leave to appeal against sentence is dismissed.