HKSAR v. LEE KIN-CHUEN AND OTHERS

CACC 436/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 436 OF 2003

(ON APPEAL FROM NO. DCCC 199 of 2003 )

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CACC 482/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO.482 OF 2003

(ON APPEAL FROM NO. DCCC 246 of 2003 )

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BETWEEN

J U D G M E N T

Hon Yeung JA (giving judgment of the Court):

Background

1.  There are two cases before the Court, namely CACC 436 of 2003 (an appeal from DCCC 199 of 2003), and CACC 482 of 2003 (an appeal from DCCC 246 of 2003).

2.  In DCCC 199 of 2003, Lee Kin Chuen (A1), Cheng Yiu Tong (A2), Lau Hei Faat (A3) and Man Tai Fai, Leo (A4) appeared before Deputy Judge Candy in the District Court on an indictment consisting of 15 charges relating to bank frauds.

3.  On 26 September 2003, A1 pleaded guilty to the 1^st, 2^nd, 4^th, 15^th   charges of possessing a false instrument(s), and the 6^th charge of conspiracy to defraud; A2 pleaded guilty to the 6^th and 11^th charges of conspiracy to defraud, and the 14^th charge of handling stolen goods, and A3 pleaded guilty to the 9^th charge of possession of a forged identity card, and the 11^th charge of conspiracy to defraud.

4.  The other charges to which A1 to A3 had pleaded not guilty were left on the court file. They could not proceed without the leave of the court.

5.  A4 pleaded not guilty, but was convicted after trial of the 5^th charge of attempt to deal with property known or reasonably believed to represent proceeds of an indictable offence, and the 12^th, and 13^th charges of possession of a false instrument.

6.  Deputy Judge Candy sentenced A1 and A2, each to a total term of 5 years’ imprisonment. He also sentenced A3 to 4 years’ imprisonment and A4 to 6 years’ imprisonment.

7.  A1 to A4 seek leave to appeal against sentence. A4 also seeks leave to appeal against conviction.

8.  In DCCC 246 of 2003, A2 and Wong Ka Ling (A5) pleaded guilty to a charge of conspiracy to defraud. On 7 November 2003, Judge Sweeney in the District Court sentenced them, each to 2 years’ imprisonment.

9.  In A2’s case, Judge Sweeney ordered the 2 years to be served consecutively to his 5-year sentence in DCCC 199 of 2003, making a total of 7 years’ imprisonment.

10.  At the time of sentence, A5 was serving a 6-year and 3 month sentence for similar offences in DCCC 259 of 2003 and a consecutive term of 1 year for an offence of using forged identity card.

11.  Judge Sweeney ordered A5 to serve the 2-year sentence consecutively to the two terms that he was serving, making a total sentence of 9 years and 3 months’ imprisonment.

12.  A2 and A5 seek leave to appeal against those sentences.

13.  Mr. John Haynes represents A2 and Mr. Duncan Percy represents A3, and A4 on their applications for leave to appeal against sentence only. A1 and A5 are not legally represented. A4 also argues the application for leave to appeal against conviction himself.

A4’s application for leave to appeal against conviction

14.  The charges of attempt to deal with property known or reasonably believed to represent proceeds of an indictable offence and possession of a false instrument against A4 arose in the following circumstances.

15.  On 3 September 2002, someone presented a forged remittance application form requesting the transfer of $1.856 million from the account of Hip Fung Electronic Industrial Company Limited to A4’s account with the Bank of East Asia.

16.  The fraud was not successfully perpetrated as an employee of Hip Fung happened to be in the bank and was able to say that the remittance application form was forged.

17.  Later the same date, A4 together with two other people attempted to withdraw/transfer $1.856 million from his account. However, the withdrawal/transfer did not succeed, as the expected fund had not been deposited.

18.  On 15 October 2002 at about 9 a.m. A4 present a forged letter of authorization purportedly issued by Universal Motor Company to collect a chequebook from the Causeway Road Branch of the Industrial and Commercial Bank of China (Asia) Limited (ICBC).

19.  A4 produced his identity card and signed at the back of the forged letter of authorization to prove his identity.

20.  At about 3.15 pm on 15 October 2002, A4 again presented another forged letter of authorization purportedly issued by Universal Motor Company to check the balance of its account with ICBC at its Mongkok Branch.

21.  A4 was arrested as the bank staff noticed a discrepancy in the signature used in the forged letter of authorization.

22.  In the subsequent interview by the police, A4 admitted that he allowed his bank account to be used by others for a reward of $2,000 to $3,000.

23.  A4 denied having seen the remittance application form in connection with the sum of $1.856 million. He said Ah Fai told him that $200,000 to $300,000 was to be transferred from Australia. As the account designated to receive the remittance owed others’ money, A4 was asked to allow his account to receive the remittance.

24.  A4 said he gave Ah Fai his bank account number, the PIN and his identity card to enable him to check if the remittance could be deposited. After it was found out that Ah Fai was able to operate his account, A4 even gave him the passbook.

25.  A4 also said that an Uncle Ming, introduced by Ah Fai, was also involved in the intended remittance of fund. He admitted that both Ah Fai and Uncle Ming acted mysteriously in the transaction.

26.  A4 said when he found out that the amount of remittance was over $1 million, he protested and Ah Fai promised him an extra $10,000.

27.  A4 confirmed that Ah Fai and Uncle Ming accompanied him in his attempt to withdraw/transfer funds from his account on 3 September 2002, but the attempt was unsuccessful.

28.  It was suggested that as his account was used to receive comprehensive assistance from the Government, large sum of money could not be deposited. Ah Fai then indicated that someone else’s account would be used.

29.  When asked if he knew the source of the money to be remitted into his account, A4 said the money “might be obtained in a corruption- or by operating a gambling establishment, or even selling white powder”.

30.  A4 said Uncle Ming also asked him to collect a chequebook from the Industrial and Commercial Bank and to check the account balance of Universal Motor Company.

31.  A4 said he did not receive any benefit, except $100 as travelling expense. A4 said he was just trying to help Uncle Ming, hoping that he would offer him a good job someday.

32.  In his defence, A4 also claimed not to know that the money to be deposited into his account came from any illegal source and that he would not have allowed his account to be used for the transfer of unlawfully obtained money.

33.  A4 said he obtained a chequebook and checked the balance of Universal Motor Company on the instruction Uncle Ming without realizing that the documents he had were forged.

34.  Deputy Judge Candy rejected A4’s evidence.

35.  On the evidence presented by the prosecution, including the record of interview, Deputy Judge Candy concluded that A4 had reasonable grounds to believe that he was dealing with proceeds of an indictable offence when he allowed his account to receive large sum of money and then tried to withdraw/transfer the money.

36.  Deputy Judge Candy relied particularly on A4’s admission that he suspected the money could come from corruption, gambling or even drug trafficking.

37.  Deputy Judge Candy concluded that when A4 tried to withdraw/transfer money from his account on 3 September 2002, he believed the money to be proceeds of an indictable offence.

38.  Deputy Judge Candy also found that A4 knew that the letters of authorization he had on 15 October 2002 were forged, and that he intended to induce the bank to accept them as genuine and to act on them.

39.  In his written grounds of appeal against conviction, A4 wrote: “The trial judge convicted me by merely drawing inferences, notwithstanding a lack of legal basis. The charge was amended to one with ‘intent’ and I was convicted thereof. My conviction was not in accordance with the principle of law”.

40.  A4 also submits to us what appears to be an advice from his trial counsel, Mr. Acton-Bond.

41.  Mr. Acton-Bond advised that what A4 did was just preparatory and did not constitute an attempt. It was also suggested that A4 thought he was just handling $200,000 to $300,000 and not $1.856 million, as alleged in the amended charge.

42.  It was further suggested that if A4 were aware of the falsity of the letters of authorization, he must be a very foolish person as he allowed the particulars of his genuine identity card to be recorded by the bank staff.

43.  In the record of interview, A4 clearly admitted that when he went with others to withdraw/transfer money from his account, he was aware that the remittance amounted to over $1 million and when he protested, Ah Fai promised him an extra $10,000.

44.  But for the fact that the expected funds had not been deposited into his account, A4 and his accomplices would have withdrawn/transferred the money from his account.

45.  Whether A4 was foolish or daring is a matter we do not wish to speculate. A4 was aware, as he admitted, that Ah Fai and Uncle Ming were acting suspiciously. He was told to obtain a chequebook and to check the account balance of a company that was completely unrelated to him or to Uncle Ming.

46.  A4 may well be a reckless person. However the use of his own identity card does not mean he must be unaware of the falsity of the letters of authorization that he produced to the bank staff.

47.  We fail to see any merit in the proposed grounds put forward by Mr. Acton-Bond in his advice to A4.

48.  It is true that the original charge was “Dealing with property known or reasonably believed to represent proceeds of an indictable offence”. The charge was amended to one to one of “attempt”. The amendment, though made at the suggestion of the judge, cannot be faulted.

49.  The judge had properly dealt with the question of amendment. A4 does not have any valid ground of complain.

50.  On the evidence, A4 had tried to withdraw/transfer over $1.8 million from his own account, with the knowledge that whatever money in the account was obtained illegally and could not have been rightfully belonged to him.

51.  Deputy Judge Candy was entitled to conclude that A4 believed the $1.856 million was the proceeds of an indictable offence.

52.  Deputy Judge Candy was also entitled to conclude that when A4 presented the forged letters of authorization to obtain a chequebook of Universal Motor Company, and then tried to check its account balance, he was fully aware that the letters of authorization were forged.

53.  On the evidence, Deputy Judge Candy’s decision to convict A4 on the three charges was a correct one.

54.  We do not find the conviction unsafe or unsatisfactory. A4’s application for leave to appeal against conviction is refused.

Application for leave to appeal against sentence

55.  What A4 did was part of an overall scheme to defraud the victim companies of large sums of money.

56.  It was a sophisticated scheme with careful and detailed planning, involving significant number of participants.

57.  False documents of identity were used to open bank accounts; forged documents were used to check the account balance and to obtain chequebooks of the victim companies; forged cheques were then issued and drawn upon accounts of those companies and paid into accounts opened with false documents of identity. If successful, accounts of the victim companies would no doubt be cleared of any balance.

58.  In order to ensure that the banks and the victim companies would not be aroused of any suspicion, telephone calls to the victim companies were diverted or attempts were made to divert them. In one instance, the telephone cables to the building where one of the victim companies had its office were tampered with.

59.  The idea was that if the bank staff found it necessary to check with the victim companies to see if they had issued the forged cheques, the culprits who pretended to be employees of the victim companies would intercept telephone calls from bank staff who would then be assured that the cheques were properly issued.

60.  If the fraud were successfully carried out, the victim companies would have suffered huge loss.

Roles of various defendants in the fraudulent scheme

61.  On 29 August 2002, A1 opened two bank accounts in the name of Loyal Company of which he was the sole proprietor. He provided the bank with the business registration certificate, the company chop and a forged identify card in the name of Chan Yu-kei (Chan) (the 1^st charge).

62.  One of the victims was Carven (Hong Kong) Company. A1 produced the forged identity card of Chan and submitted a forged remittance application form purportedly issued by Carven to transfer over $238,000 in its account to the account of Loyal (the 2^nd charge).

63.  The telephone wires of the whole building where Carven situated were damaged so that telephone calls to Carven could be diverted to another number. When the bank staff tried to call Carven to confirm the veracity of the transfer, someone claiming to be Carven’s staff confirmed the transfer.

64.  A1 also produced the forged identity card in the name of Chan to withdraw $238,000 from Loyal’s account.

65.  The same modus operandi was adopted in relation to another company -New World Parking Management, (the 6^th charge).

66.  In early September 2002, A1 opened two bank accounts in the name of Loyal with Liu Chong Hing Bank, using the forged identity card in the name of Chan.

67.  Instead of using forged remittance application, forged letter of authorization purportedly issued by New World Parking was used to obtain a chequebook to its account with Hang Seng Bank.

68.  A person who claimed to be Chan Kin-yung collected the chequebook

69.  Cheques of $462,530, $385,700, and $393,900 issued with forged signatures and drawn upon the account of New World Parking were deposited into various accounts operated by the culprits, including those of Loyal, Chu Cheung-hung and M Phone Ltd.

70.  Fortunately Hang Seng Bank was able stop the cheques when wrong combination of signatures was noticed.

71.  A2 tried to discard the following items at different rubbish bins, including:

1.                 a current account pay-in slip showing the payment of $462,530 into Loyal’s account;

2.                 photocopy of Bank of China passbook in the name of Chu Cheung-hung;

3.                 one photocopy of a Bank of China customer advice slip showing cheque deposit of $385,700 into Chu Cheung-hung’s account;

4.                 a Bank of China customer advice slip showing cheque deposit of $385,700 into Chu Cheung-hung’s account;

5.                 a Bank of China customer advice slip showing cheque deposit of $393,900 into M Phone Ltd’s account;

6.                 some papers containing various names, telephone numbers and addresses, including the address of New World; and

7.                 four signed Hang Seng Bank cheques issued from the same chequebook of New World collected by the one who claimed to be Chan Kin-yung.

The following items were seized from A3’s flat after his arrest:

1.                 Chan Kin-yung’s passbook;

2.                 a forged identity card in the name of Chan Kin-yung;

3.                 a business registration certificate of Loyal;

4.                 an ATM card of Sin Hua Bank in A1’s name

5.                 A1’s Home Visit Permit; and

6.                 A1’s identity card.

72.  In October 2002, A1 tried to collect the chequebook of Forace International Limited from HSBC with the use of a forged identity card in the name of Cheung Toi-ming, which bore A1’s photograph (the 15^th charge).

73.  The forged identity card in the name of Chan Kin-yung found in A3’s flat formed the subject matters of the 9^th charge against him.

74.  The 11^th charge of conspiracy to defraud against A2 and A3 arose in the following circumstances.

75.  On 24 September 2002, a forged chequebook application form was submitted to Hang Seng Bank purportedly on behalf of Intercontinental Toy Co. Ltd.

76.  On 7 October 2002, A1 attempted to collect the chequebook with a forged letter of authorization and a forged identity card in the name of Chan, but bearing his photo.

77.  A2 was under police surveillance and was seen to have done a business search of Intercontinental Toy on 28 September 2002.

78.  On 2 October 2002, A2 faxed an application form on behalf of Intercontinental Toy to have its phone calls forwarded to another number.

79.  The police seized the application form, and the fax receipt. A2’s fingerprint was found on the fax receipt.

80.  After his arrest, A3 admitted that one morning in October 2002, he was asked to listen to police console communication at a restaurant for a reward of $500, as part of the attempt to defraud the bank.

81.  The forged letter of authorization used by A1 to collect the chequebook of International Toy bore A3’s fingerprint.

The judge’s findings

82.  Deputy Judge Candy emphasized the seriousness of the offence and the enormous potential loss to the victims. He pointed out that in HKSAR v Cheng King-lung CACC 67 of 2002, the Court of Appeal did not interfere with a total sentence of 6 years for similar offences, albeit this involved an element of enhancement.

83.  Deputy Judge Candy took the view that A1 and A2 took major roles in the conspiracy. On the other hand, he accepted that A3’s role was less than that of A1 and A2.

84.  As for A4, Deputy Judge Candy pointed out that he was prepared to allow his account to be used to launder a large sum of money and to assist actively in the wider fraudulent scheme.

85.  Deputy Judge Candy opined that A4’s criminality was at least equal to that of A1 and A2.

86.  Deputy Judge Candy adopted a starting point of 5 years for the charges of conspiracy to defraud and money laundering with 3 years for the other charges. A guilty plea attracted a one-third discount.

87.  In the end, Deputy Judge Candy imposed 2 years’ imprisonment on each of the 1^st, 2^nd, 4^th, and 15^th charges against A1 with one year on the 2^nd charge to run consecutively.

88.  On the 6^th charge of conspiracy to defraud, a sentence of 3 years 4 months was imposed with 2 years to run consecutively to the other sentences. The total sentence on A1 is 5 years’ imprisonment.

89.  On each of the 6^th and 11 charges of conspiracy to defraud, a term of 3 years and 4 months’ imprisonment was imposed on A2 with 1 year and 8 months to run concurrently, making a total sentence on the 2 charges of 5 years’ imprisonment.

90.  A concurrent term of 2 years was imposed on the 14^th charge of handling stolen goods. The total sentence on A2 is therefore also 5 years’ imprisonment.

91.  On the 9^th charge of possession of a forged identity card and the 11^th charge of conspiracy to defraud against A3, Deputy Judge Candy imposed the respective terms of 2 years, and 3 years and 4 months’ imprisonment with 1 year and 4 months to run concurrently, making a total of 4 years’ imprisonment.

92.  On the 5^th charge of attempt to deal with property known or reasonably believed to represent proceeds of an indictable offence, and the 12^th and 13^th charges of possession of a false instrument against A4, Deputy Judge Candy imposed the respective sentences of 5 years, 3 years and 3 years’ imprisonment.

93.  The 3-year sentences are concurrent terms with 1 year to run consecutively to the 5-year term, making a total of 6 years’ imprisonment.

Grounds of Appeal

94.  A1, in his written application said he was “dissatisfied with the heavy sentence imposed on this case”. He emphasizes that he had pleaded guilty to the charges and hence deserves a lenient sentence.

95.  Mr. Haynes, on behalf of A2 suggests that the actual and potential amounts involved in the fraud were at the “lower end of the scale”. He submits that the schemes were relatively unsophisticated and poorly executed when the banks and the police suspicions were aroused at an early stage.

96.  Mr. Haynes further points out that the basic sentence of 5 years adopted in HKSAR v Cheng King Lung (supra) reflected not only a larger number of offences, but also an actual loss of $1.1 million and the potential losses of $3.2 million.

97.  Mr. Haynes suggests that the total sentence of 7 years’ imprisonment on A2 (after adding the 2-year sentence imposed in DCCC 246 of 2003) is manifestly excessive and that the appropriate overall sentence is 3 years 6 months to 4 years.

98.  Mr. Percy, on behalf of A3 and A4, also complains that the sentences on them are manifestly excessive. He emphasizes that the 9^th charge against A3 of possession of a forged identity card was brought under the Registration of Persons Ordinance with a maximum sentence of 10 years’ imprisonment, and that the charges of possession of a false instrument against other defendants were brought under the Crimes Ordinance with a maximum sentence of 14 years’ imprisonment. Yet the judge adopted the same starting point of 3 years for both types of offence.     

99.  Mr. Percy also submits that A3’s role in the 11^th charge of conspiracy to defraud was much less active than that of A1 and A2 when he simply monitored the police console communication near a bank.

100.  The starting point is said to be too high and the resulting total sentence of 4 years’ imprisonment manifestly excessive.

101.  On behalf of A4, Mr. Percy submits that Deputy Judge Candy was wrong in concluding that A4’s criminality was equal to that of A1 and A2.

102.  He emphasizes that A4 was, as found by Deputy Judge Candy, “an unsophisticated person, a self-confessed drug addict, living a hand to mouth existence who was being used and manipulated by others”. As such, A4 was not a key player and was not actively involved in the planning and execution of the fraud, but just “a convenient errand boy who was willing to do anything to earn money”.

103.  In the circumstances, the 5-year sentence on charge 5 is, he says, too high, and the overall sentence of 6 years manifestly excessive.

104.  A5 produces his Counsel’s case report, which suggests that total sentence in DCCC 259 of 2003 and DCCC 246 of 2003 is manifestly excessive.

105.  It is suggested that the two cases ought to have been listed and heard together in which event concurrent sentences were likely to be imposed.

106.  We find it impossible to accept Mr. Haynes’s submission that the schemes perpetrated by the applicants were unsophisticated and poorly executed as a mitigating factor.

107.  Quite the contrary, the schemes were innovative, daring and well planned. They were carefully executed with a view to defraud the victims of as much money as possible.

108.  False documents were used to open bank accounts and to obtain chequebooks of victim companies. Balances in the victims’ accounts were checked, no doubt in order to determine the suitable amount to be withdrawn from those accounts.

109.  Forged cheques were issued to draw upon the victims’ accounts and forged remittance application was executed to transfer money from the victim’s account to accounts controlled by the culprits.

110.  Telephones of the victims were tampered with to ensure that the fraudulent schemes would be successfully carried out.

111.  On the facts of the case, A1 and A2 were clearly the masterminds. Deputy Judge Candy was taking a very lenient view when he said A3’s role was less than that of A1 and A2 and used it as a mitigating factor.

112.  The actual and potential loss to the victims is certainly a relevant factor. The culprits no doubt intended to swindle as much money as possible, limited only by the available amounts in the victims’ accounts.

113.  As this Court have observed in HKSAR v Cheng King-lung (supra):

“…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 buy 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.”

114.  In any event, the actual loss to the victims was not small. The potential loss could certainly be very significant.

115.  Although the 9^th charge of possession of a forged identity card was brought under the Registration of Persons Ordinance, we cannot ignore the admitted fact that the forged identity card was used to obtain a chequebook of New World Parking and cheques from the chequebook were issued to obtain over $1.2 million from its account. The distinction identified by Mr. Percy, in our view, is not significant for the purpose of sentence in A3’s case.

116.  We are firmly of the view that the individual and total sentences on each of A1, A2 and A3 in DCCC 199 of 2003 are fully justified.

117.  We are, however, concerned with the consecutive sentence of 2 years imposed on A2 and the total sentence of 6 years imposed on A4.

118.  The 2-year consecutive sentence was imposed by Judge Sweeney in DCCC 246 of 2003 six weeks after Deputy Judge Candy sentenced A2 to 5 years’ imprisonment in DCCC 199 of 2003.

119.  The offence in DCCC 246 of 2003 was a continuation of the offences in DCCC 199 of 2003 and they were similar in nature. The two cases could have been dealt with together.

120.  We are not persuaded that administrative difficulties, relied on by Ms. Wong, arising from the initial “not guilty” pleas justify the decision not to deal with both cases at the same time.

121.  When A2 pleaded guilty in DCCC 199 of 2003, the prosecution could have invited Deputy Judge Candy to adjourn sentence until DCCC 246 of 2003 was also disposed of. The prosecution could also have invited Deputy Judge Candy to bring up DCCC 246 of 2003 so that he could deal with it as well.

122.  If the cases were dealt with together and bearing in mind that A2 had pleaded guilty to all the charges, it was unlikely that he would be sentenced to the maximum term within the District Court jurisdiction, namely 7 years’ imprisonment.

123.  In the circumstances, the proper step to take is to order the 2-year sentence imposed in DCCC 246 of 2003 to run concurrently to the 5-year term imposed in DCCC 199 of 2003.

124.  A4 was convicted of a charge of attempt to deal with property known or reasonably believed to represent proceeds of an indictable offence and two charges of possession of a false instrument.

125.  On the evidence, A4 was a particularly unsophisticated person, a drug addict living a hand to mouth existence who had been used by others- no doubt picked by them for those quantities- to take part in the fraudulent schemes.

126.  The fact that A4 allowed his own account to be used to launder money and that his identity card was used for the collection of a chequebook clearly indicates that he was willing to do anything to make money.

127.  A4 was made use of by others and ultimately his crime would no doubt be exposed.

128.  Without in any way trying to minimize the seriousness of what A4 did, we are persuaded that his culpability was significantly less than that of A1, A2 or A3.

129.  We are persuaded that a total sentence of 4 years and 6 months’ imprisonment after trial is adequate to reflect his culpability.

130.  We decide to achieve such result by reducing his 5-year sentence on the 5^th charge to one of 3 years and 6 months.

131.  The concurrent terms of 3 years’ imprisonment on the two charges of possession of a false instrument to remain with one year to run consecutively to the 3-year and 6 month sentence. The total sentence on A4 is reduced from 6 years’ to 4 years and 6 months’ imprisonment.

132.  A5 was sentenced to 6 years and 3 months’ imprisonment in DCCC 259 of 2003 on 30 September 2003 for similar offences. At that time, he was serving one year’s imprisonment for using a forged identity card.

133.  On 7 November 2003 A5 was sentenced to 2 years’ imprisonment after pleading guilty in DCCC 246 of 2003, to run consecutively. The total sentence became 9 years and 3 months’ imprisonment.

134.  There was an application on 23 June 2003 before Judge Fung to have DCCC 259 0f 2003 and DCCC 246 of 2003 listed together.

135.  Judge Fung refused the application on the basis that the sentence in both cases would exceed 7 years, and if an application to enhance the sentence under the Organized and Serious Crimes Ordinance were granted, even a discounted sentence after a guilty plea could still exceed 7 years.

136.  There was, as it turned out, no application for enhancement of sentence. In any event, the total sentence imposed in the District Court cannot exceed 7 years (See section 82(2)(b) of the District Court Ordinance, Cap.336 and section 27(13) of the Organized and Serious Crimes Ordinance, Cap.455).

137.  The offences in both cases were similar and were committed around the same time. They should have been dealt with together in which event, the total sentence could not have exceeded 7 years, particularly when A5 had pleaded guilty to all the charges in both cases.

138.  As A5 does not appeal against the sentence of 6 years and 3 months imposed in DCCC 259 of 2003, we need say no more about it.

139.  However, the total sentence of 9 years and 3 months he was eventually ordered to serve is manifestly excessive.

140.  We are of the view that justice will be served by ordering that the 2-year sentence imposed in DCCC 246 of 2003 to run concurrently to the sentences that A5 was already serving in DCCC 259 of 2003, making a total of 6 years and 3 months.

Conclusion

141.  A4’s application for leave to appeal against conviction is dismissed.

142.  A1 and A3’s applications for leave to appeal against sentence are also dismissed.

143.  Leave is granted to A2, A4 and A5 to appeal against sentence. Their applications are treated as appeals proper and their appeals are allowed to the following extent.

144.  In CACC 436 of 2003 (DCCC 199 of 2003), A4’s 5-year sentence on the 5^th charge is reduced to 3 years and 6 months to run consecutively to 1 year of the 3 years on the 12^th and 13^th charges. The total sentence on A4 is reduced from 6 years to 4 years and 6 months.

145.  In CACC 482 of 2003 (DCCC 246 of 2003), the 2-year sentence on A2 will run concurrently to the 5-year sentence imposed in DCCC 199 of 2003. The total sentence on A2 in both cases is reduced from 7 years’ to 5 years’ imprisonment.

146.  The 2-year sentence on A5 will also run concurrently to his 6-year and 3 month sentence imposed in DCCC 259 of 2003.

147.  The total sentence on A5 in both cases is reduced from 8 years and 3 months’ to 6 years and 3 months’ imprisonment. The other one-year sentence had already been served by A5 and requires no further mention.