HKSAR v. MARIMUTHU JAISANKA

CACC 403/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 403 OF 2007

(ON APPEAL FROM DCCC NO. 161 & 557 of 2007)

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JUDGMENT

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Hon Wright,  J.:

1.  The appellant pleaded guilty on 30 October 2007 in the District Court before His Honour Judge Mackintosh to seven counts of dealing with property known or believed to represent the proceeds of an indictable offence contrary to section 25 of the Organised and Serious Crimes Ordinance, Cap. 455.

2.  The judge described the appellant's conduct in these terms:

1.	The offence... was dealing with money which had been obtained as a result of dishonest Internet access to other people's bank accounts by which those accounts were used to buy into a particular form of security, namely, a put warrant, in order to ramp up the price of that security which was simultaneously being traded on your own bank account.
2.	The warrant was bought in on your account at a low price.  The price was pushed up by artificial trading through these third party accounts and the warrant was then sold from your account at the higher price.
3.	Over a period of several days, in October 2006, six such transactions occurred, though there were multiple sales and purchases of the warrant in question through the accounts.
4.	In the end, third parties lost a total of $3,198,000... a gain of $628,730 was credited to your account in Hong Kong.
5.	Your offence represented by the seven charges to which you have pleaded guilty was to deal with those proceeds, remitting the money overseas.  The proceeds transferred amount to $297,932.
	...
8.	I accept that it is not alleged that you were necessarily the operator but it is no more than common sense to say that you must at least have been close, so close to that manipulation as to make no practical difference.

3.  The appellant says that he does not challenge what he described as his "... sentence verdict".  However, in the course of his written submission he complains that he feels that he had been sentenced "like a real operator" despite the fact that the judge specifically said that he was not one.

4.  The judge took a starting point of 39 months imprisonment on each count which he reduced by the customary one third for the pleas of guilty.  He ordered that the sentences be served concurrently with one another resulting in an aggregate sentence of 26 months imprisonment.  I say immediately that the sentences and the order were entirely appropriate.

5.  The thrust of the appeal is to seek a reduction in sentences on what the appellant describes as humanitarian grounds.  He first raised these grounds in his Notice of Application for Leave to Appeal, dated 19 November 2007, in which he refers to his "... parent’s health condition considering their old age (73 years and 68 years) and their limited survival time... and how they were affected after knowing my sentence details."  Leave to appeal sentence was granted by Yuen, JA., on 17 January 2008.

6.  The appellant repeats the same grounds in his written submissions to which he attaches three documents said to emanate from Tamilnadu Hospital in Kodambakkam, Chennai, India: a three-page medical report dated 23 October 2007 relating to one S Marimuthu, a 74-year-old male, and prepared consequent upon his admission to that hospital on the 19 October 2007 and two documents one dated 27 October 2007 by a consultant of the hospital and one dated 10 December 2007 by the chief consultant of the hospital. 

7.  The contents of those documents suggest that the patient is the appellant's father, which the appellant says to be the case: I shall assume that to be so.  The provenance of none of the reports has formally been verified but I propose to take their contents at face value for the purposes of this application.

8.  The earliest report paints a picture of a person in poor health, describing, amongst other problems, a history of diabetes mellitus since 1985, coronary artery disease since 2000, hypertension since 2004 and a cerebrovascular accident leading to left hemiparesis on an unspecified date.  It goes on to relate a clinical examination, apparently on the date of admission, which revealed, amongst other things, sinus bradycardia and evidence of ischaemia whilst an MRI scan of the brain showed “Conspicuous lesions…on the posterior left hemisphere”.

9.  The consultant describes a tumour in the posterior left hemisphere of the brain as having reached an “advanced stage” and describes the patient’s condition as "critical": he expresses the view that the appellant’s presence with the patient would be "morally supportive".  I note that this report is dated three days prior to the date on which the appellant was sentenced.

10.  The senior consultant in his document passes similar observations but adds that on 30 October 2007, the patient "…went into a shock and subsequently suffered a stroke" when hearing the news of the appellant’s sentence.

11.  In considering an application for reduction in sentence where the appellant's father had been taken ill and died subsequent to the appellant's incarceration the court, Ma, CJHC. and Stock, JA., in HKSAR v GURUNG Hemant, CACC332/2005, observed:

…the Appellant’s father passed away on 20 September 2005 on his return to Nepal.  He had died from a heart attack.  All this is tragic but is not a factor that can go to the reduction of sentence.  Mr Ross has referred us to AG v Ling Kar Fai (No 2) [1997] 2 HKC 651 (a decision of this court) for the proposition that in considering the appropriate sentence, the court can take into account the ill health of a relative and the impact of this on the accused.  We agree that in certain special circumstances, this may be a relevant factor.  Ling Kar Fai provides an example : there, the ill health of the defendant’s wife was taken into account as part of the distress the defendant in that case went through as a result of a delay in his prosecution.  However, generally, in cases where the ill health of a close relative is sought to be relied on as some sort of mitigation in that the accused has been unduly affected, the courts have, rightly in our view, not allowed this factor to be taken into account…  We can put it no better than to paraphrase and adapt the words of Nazareth VP in R v Wong Wai-lun, unreported, CACC512/1996, 7 March 1997 : - those who are concerned about the welfare of their parents or family should avoid getting involved in this sort of offence in the first place.

12.  It is plain from the reports that even if there may have been a deterioration in the patient's condition either by effluxion of time or brought about by news of the appellant's incarceration, the appellant must have been well aware of his father's already parlous state of health when he committed these offences.  It must be that it would have been apparent to him that his father's health was likely to continue to deteriorate, or at least not improve, yet he went ahead and committed the offences.

13.  I note that the appellant is due for release in approximately three months, having served a substantial period in custody awaiting a trial date. Whilst it is true that that is a comparatively short period that fact alone does not avail the appellant.

14.  As deserving of sympathy as the appellant’s situation might be, in my view it does not justify any reduction in an otherwise appropriate sentence.  The appeal is dismissed.

Hon Tang, VP.:

15.  For the reasons given by Wright, J., I too would dismiss the appeal.