HKSAR v. CHU HAK LAN

CACC 277/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 277 OF 1999

(ON APPEAL FROM DCCC 273 OF 1999)

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J U D G M E N T

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Hon Stuart-Moore V-P (giving the judgment of the Court):

1. On 13 May 1999, the Applicant, who is aged 40, pleaded guilty in the District Court before Judge Day to two charges of conspiracy. He received an overall sentence of four and a half years' imprisonment. The Applicant now seeks leave to appeal against the length of his sentence on the ground that his subsequent conduct in three trials, where he gave important evidence for the prosecution, entitles him to an increased discount to his sentence.

2. At the time he committed the offences which brought the Applicant before the court, he was a Senior Inspector with the Customs & Excise Department. His position did not assist him in the commission of the offences in the way that it might have done if he had been a police officer or an immigration officer. The first charge he faced was a conspiracy between the 5 June 1998 and 4 March 1999 to possess travel documents, namely passports issued by the Republic of Brazil, contrary to section 159A of the Crimes Ordinance, Cap 200, and section 42(2)(c)(i) of the Immigration Ordinance, Cap 115. The second charge was a conspiracy between the 1 December 1998 and 4 March 1999 to deal with property knowing or believing it to represent the proceeds of an indictable offence, contrary to section 159A of the Crimes Ordinance, and section 25(1) of the Organised and Serious Crimes Ordinance, Cap 455.

3. The facts of the case do not greatly matter so far as the issue which has arisen in this application is concerned. In essence, on the first charge the Applicant had arranged for four Brazilian passports to be issued to acquaintances of a Russian businessman who was known to the Applicant as "Richard". Each passport was priced at $250,000 but, at the time of the Applicant's arrest, he had been paid only $140,000 towards the first passport. The second charge was a wholly separate arrangement with "Richard". This involved a money laundering operation being set up with triads in Macau and people who the Applicant believed were Russian underworld figures. The Applicant was led to believe that weekly sums of up to $2,000,000 would be laundered.

4. On any view, as the judge rightly stated, the offences were serious. In his sentencing remarks concerning the first charge, the judge described the Applicant as:

"... more than the middleman his counsel suggested. He was not only the link between the customer and his passport but was involved throughout as I have already indicated. Obviously others must have been involved in the process, but he was essential to it.

This was a highly professional operation stretching around the world and producing original documents, not copies."

5. In relation to charge 2, Judge Day went on to say that he accepted that the Applicant, in this instance, was a "middleman" and he continued by saying:-

"... but he was involving himself here with organised crime on an international scale. He was a vital part of a group of criminals who were used to dealing with enormous sums of money, who had connections in banks to assist with the concealment of their activities, who claimed to own a casino in Los Angeles which they also used to launder money and who were themselves triads. Money could not be laundered in this way if someone did not put the cash-rich gangsters in touch with those who can hide its origins. If proceeds of crime could not be 'legitimised' organised crime would be dealt a severe blow. The defendant, middleman or not, was an essential cog in this evil machine.

In addition it should not be forgotten that his associates were triads. The importance they attached to the business is perhaps indicated by the fact that a Dragon Head was apparently involved. This defendant was providing business and profits for triads."

6. The judge, having reviewed two authorities which lent some assistance towards reaching a proper starting point on charge 1, adopted five years' imprisonment as the appropriate starting point. In the absence of any authority relating to charge 2, the judge took a starting point of four years' imprisonment.

7. Miss Ma, on behalf of the Applicant, has sensibly not sought to quarrel with the judge's approach to the starting points or as to the decision the judge made to order that the sentences should run consecutively.

8. The judge went on to give a discount of one third to reflect the pleas and he gave a further six months' discount for the Applicant's "clear record and the impossibility of the second offence taking place". This brought the combined sentences down to five and a half years which the judge further reduced by 12 months because, as he expressed it:

"I feel there are special circumstances in this case which justify a lenient view being taken of the facts."

9. It is apparent from the papers before the court today that Judge Day had been provided with a letter from a chief investigator at the Independent Commission Against Corruption (ICAC) which stated that the Applicant had provided a number of statements containing allegations of substance. The letter went on to say that the Applicant had undertaken to testify in future criminal trials arising from the information he had provided.

10. It is plain, without saying more, that the 50% discount which was given by the judge in the District Court, was over-generous at that stage. A discount at this level is usually only accorded to those who have already given evidence against others, unless it can be said that they have come into the rare category of "supergrass" when the discount would have been greater. Here again, however, it would be usual that the offender would have had to have given evidence for the prosecution before receiving a discount at the appropriate level. The judge, it seems to us, was giving in part at least a discount on the basis of a promise to give evidence in the future instead of leaving the matter open for consideration by this court or by the Executive after the Applicant had carried out his promise. Indeed, in most cases, the situation would normally be that the defendant in such a position would not be sentenced until after he had given evidence against his accomplices or others, as the case may be. In this case there was a departure from the norm because those persons the Applicant had named had not yet been charged.

11. As it happens, no harm has been done because, having been brought up to date with what has happened since sentence was imposed, it is plain that the Applicant has been true to his word. In relation to three separate pieces of information he had given, the Applicant gave evidence for the prosecution in no less than three trials. This led to the conviction of the culprits in every case.

12. In the first trial, which took place in the District Court, the Applicant gave evidence against Wong Ping-shui and Leung Chung (CACC 251/2000 (unreported)). Both these men were the Applicant's accomplices in the second charge he faced relating to money laundering activities although only one of them was named in the charge against the Applicant. They were each imprisoned for five years.

13. The second trial, also in the District Court, related to Kwan Che-ping who was convicted of ten offences of accepting an advantage as a public servant, contrary to section 4(2) of the Prevention of Bribery Ordinance and a further charge of conspiracy to accept an advantage. The defendant was sentenced to four years' imprisonment. In both of these trials, the Applicant had been the key witness.

14. The third trial, which took place very recently in the Court of First Instance, involved a defendant called Lam Yuk-fai who was charged with conspiracy to obtain a travel document which had been unlawfully obtained, possession of a false travel document, and conspiracy to transfer travel documents without reasonable excuse. The defendant was sentenced to 10 years' imprisonment as these allegations involved diplomatic passports.

15. The Applicant has provided information, which he has supported by giving evidence in three important trials, two of which were unconnected to the charges he faced in the District Court. We consider that if this information had been before the sentencing judge, he would inevitably have given a greater discount than 50%. In the highly unusual circumstances of this case, and in order to show the willingness of the court to encourage such conduct as the Applicant has displayed, we propose to say that a two thirds discount to the original starting points taken by the judge would be appropriate in this case.

16. Accordingly, we shall grant leave. Treating the hearing as the appeal, we shall reduce the two-and-a-half-year sentence on count 1 to two years and on count 2, we shall reduce the two-year sentence to a sentence of 12 months. These sentences are to be served consecutively, making three years in all.

17. The appeal is successful, therefore, to the extent of a reduction by one and a half years on the sentence originally imposed.