HKSAR v. YIU TAT CHOY

IN THE COURT OF APPEAL

1997, No. 613
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant pleaded guilty to conspiracy to defraud and was sentenced by Stock, J to 6 years' imprisonment. He now seeks leave to appeal against this sentence.

2. The agreed facts disclose a very serious offence. Mr. Ho, the co-conspirator was an employee of the Chase Manhattan Bank. He had authority to approve very substantial loans to customers. He approached the Applicant and suggested a scheme whereby according to the records of the bank, loans would be made to customers but in fact the moneys would be credited to an account which was opened by the Applicant. The Applicant would then transfer the moneys to other accounts in his name and the proceeds would be shared equally by Mr. Ho and the Applicant.

3. There was a further variation on the theme. Some of the initial loans would be repaid from the proceeds of further moneys which had been stolen.

4. The conspiracy lasted from December 1989 to January 1991.

5. In overall terms HK$147 million was stolen from the bank. However taking into account the kiting operation referred to the net proceeds of the crime at the time of its discovery were HK$74 million.

6. Mr. Ho was questioned by his superiors at the bank on 23rd January 1991 and the offence came to light. Mr. Ho telephoned the Applicant who thereupon absconded.

7. As a result of investigations conducted by the bank and legal action instigated by them, they succeeded in freezing and recovering HK$27.5 million. Something of the order of HK$21 million was recovered from the Applicant's assets while he was away, thus leaving a balance of approximately HK$14 million unaccounted for.

8. Mr. Ho pleaded guilty to the offence before Duffy, J in November 1992 and was sentenced to 5 years' imprisonment.

9. The Applicant returned to Hong Kong in April 1997 and surrendered himself to the police. As part of the mitigation which was advanced on his behalf, it was claimed that following his return the Applicant had co-operated with the police.

10. Stock, J caused inquiries to be made in this connection which were to a large extent inconclusive. It could not be demonstrated one way or the other whether the Applicant still had in his possession or control part of the remainder of the moneys which had been stolen. The judge noted that the police were inclined to the view that the Applicant had returned to Hong Kong as a result of running out of the moneys he had had.

11. The 1st ground of appeal is that the starting point of 9 years' imprisonment adopted by Stock, J was manifestly excessive. Having regard to the very substantial amount of money stolen we disagree. 9 years' imprisonment was not a manifestly excessive starting point. It is however true to state that the sentence was a heavy one at the top end of permissible sentences.

12. We agree with Mr. Saw's submission that it is necessary in the first instance to have regard to the nature of the conspiracy as a whole. This being the case 9 years was not too high a starting point.

13. The 2nd ground in the amended grounds of appeal is that "The learned trial judge failed to make sufficient allowance for the following matters:

1. the appellant acted upon the instructions of his co-offender Ho Kin-man and was not a prime mover in the planning of the fraud or its execution.
2. the appellant was not himself employed in a position of trust with the victim Bank."

14. Stock, J was at considerable pains to weigh and analyse the respective roles of the two men. He appears to have accepted that Mr. Ho was the main instigator of the offence. The judge was also not impressed with the submission that the Applicant should be given credit for the fact that more moneys were recovered from him than from Mr. Ho. All this indicated was that Mr. Ho had been more extravagant than the Applicant at the time of the discovery of the offence. Clearly it had been the intention of both men to retain all of the proceeds of their crime.

15. Stock, J was also mindful of the fact that unlike Mr. Ho, the Applicant did not owe any duty of trust to the bank. However, the important matter to bear in mind is that there was no requirement for Stock, J to adopt a similar approach to the approach which had been adopted by Duffy, J. Although Mr. Plowman, S.C. did not pursue the original ground of appeal relating to the claimed disparity in the sentences passed the argument he was pursuing in this connection in effect is attempting to raise this issue through the back door. This is not permissible.

16. The 3rd ground is "the learned trial judge erred in finding that the mitigation as to post offence conduct was stronger in the case of the appellant's co-offender, Ho Kin-man."

17. We do not think that the judge erred. The fact that the Applicant absconded must redound to his discredit. Indeed this of itself is often a reason for not allowing the full 1/3 discount when a defendant has entered a guilty plea. Had the Applicant not absconded it would presumably not have been necessary to have two separate trials. What is clear is that on account of the fact of the Applicant's absconding, he was unable to give any assistance whatever in the recovery by the Bank of any assets. So far as actual assistance to the police is concerned it is probably true to state that neither man really rendered much assistance to the police.

18. The information which the Applicant gave concerning Mr. Fong Chi-hin and Chung Pak-on was really inconclusive. The Applicant was attempting to explain how the assets he had obtained had been disposed of. It was never established in any satisfactory way whether the information given by the Applicant was accurate. In fact all of this information was of very little assistance. There is no merit in his ground.

19. Overall the sentence imposed was neither manifestly excessive nor wrong in principle and this application is dismissed.