HKSAR v. LEE YIN LING

CACC296/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.296 OF 2003

(ON APPEAL FROM DCCC NO. 1161 OF 2002)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1. Leave has earlier today been granted to this applicant, who has been refused legal aid, to appeal against sentence. Given the time factors at play, the matter is urgent because if the appeal were to succeed the appellant would be entitled to release later this month. It has been possible to convene this Court now to deal with the substantive appeal.

2. The appellant pleaded guilty before HH Judge Sweeney to one count of conspiracy to defraud. This was yet another of the "London Loco Gold" form of frauds, and in this case this applicant played the role of a recruiter. She was sentenced with a number of others on 24 June 2003 to a total of twelve months' imprisonment, credit having been given for her plea of guilty, and a deduction having been made in her case, and in the case of others, because of delay.

3. In sentencing one other defendant, who was D13, the judge gave a further discount of two months, resulting in a total of ten months' imprisonment. That further deduction was because that defendant had given a statement to the police and was prepared to give evidence for the prosecution. This appellant complains that she was not given the same discount even though at an early stage she told the police that she was going to plead guilty and went to the police station and gave a statement inculpatory of other defendants. She was told that she was to be accepted as a prosecution witness and she contends that this had some role, or must have had, in persuading others to plead guilty, and that she ought to have been given the same discount as was afforded to D13.

4. What the appellant says is, in its essential effect, accepted by Ms Chan for the respondent; in other words, that to all intents and purposes this appellant was in the same position as D13, although she points out that D13 was actually going to give evidence in the case of D9 who at first pleaded not guilty but, in the event, because of a change of plea, that evidence was not required.

5. The sentencing judge has, as always, dealt with the matter in detail and with great care in his Reasons for Sentence and we cannot think that he would have overlooked this matter had it been brought to his attention. Ms Chan tells us that it seems from the papers in her possession that the matter was probably not drawn to the notice of the learned judge.

6. In the circumstances we have concluded that there is no real warrant for the distinction between the two sentences and, accordingly, we allow the appeal, set aside the sentence of twelve months' imprisonment and substitute a sentence of ten months' imprisonment.