HKSAR v. AU YEUNG PUI WAH

CACC 149/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 149 OF 2002

(ON APPEAL FROM DCCC 693 OF 2001)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1. On 1 March 2002, the applicant was convicted following a trial in the District Court before Judge W. Wong of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap. 200. She was sentenced on 22 March 2002 to a term of two years and eight months' imprisonment.

2. The applicant now seeks leave to appeal against her sentence some twenty-five months out of time.

3. The conspiracy in which the applicant agreed with six others to defraud, related to a well known scam usually referred to as a "Loco London Gold/Silver" fraud. Between 20 December 1999 and 2 March 2000, a bogus company called "Best Sky" was in operation, holding itself out as a genuine bullion trading enterprise. Using the press to advertise menial jobs at high wages, the company was able to trap gullible people, who often turned out to be middle-aged women, into applying for the jobs on offer. However, when the job applicants went to the relatively plush company offices in Connaught Road Central, they would quickly find themselves having to work on "calculations" contained in what appeared to be investment files. After clever persuasion by members of the conspiracy, the newly recruited "employees" were then deceived into "investing" their own hard-earned savings in what they were led to believe was bullion trading. Needless to say, they lost all their money. The applicant, who was the 1st defendant at trial, operated under the name of "Kelly".

4. The judge, in the Reasons for Verdict, described the applicant's role in the following terms:

"In respect of the 1st defendant, PW1 said on her first day at work, on 14 February 2000, there was a Kelly Au in the room who told her it was also her first day. When PW1 queried about the company and wanted to leave, Kelly Au asked her friend who was a lawyer to make enquiries. Kelly told her that the lawyer friend said the company had a branch in Causeway Bay and that the company had a capital of 5 million. That was of course not true. When D5 told them he had made a lot of money from investment, Kelly persuaded her to invest and encouraged her by telling her it was easy to make money. Kelly also suggested how she could get money to invest. Kelly, always in the presence of D5, asked about PW1's financial position. PW1 had been persuaded by Kelly and D5 to invest by saying it was easy to make money. When PW1 worried that she might have been deceived, she was consoled by Kelly and D5." (Appeal bundle p. 43)

5. In his sentencing remarks, amongst other things, the judge said:

" I am satisfied that all defendants are not the prime movers in this conspiracy, but they do play different roles. The sentence I am about to impose would reflect on the different roles that they played.

I am satisfied that this is an organised crime which was prevalent. I accept that there was a decline of such crime statistically, but according to Chief Inspector Chan, the modus operandi now is to set up such companies for a short duration so that it is difficult to detect. Hence, I am of the view that an enhancement of sentence is necessary to serve as a deterrent.

In this conspiracy I considered the role played by the 2nd, 3rd and 7th defendants is more significant and more involved in the management of the company. Whilst the 1st, 4th, 5th, and 6th defendants played a lesser role by inducing the victims to invest.

There are no mitigating factors. I do not consider each defendant's background as a factor which I should take into consideration. The fact that they have a clear record would not have much significance in sentencing crimes of such a serious nature. A long custodial sentence is inevitable.

It is said that I have to sentence the 1st defendant, who is now pregnant and who had a rather tragic past family background and who is now having a boyfriend with supporting parents, to prison. But then the role she played is the same as the 4th, 5th and the 6th defendants.

As she is not fit to go to a training centre, to give her a sentence different from the other three defendants would mean there is disparity.

So in respect of the 1st, 4th, 5th and 6th defendants, I take a starting point of 2 years and I enhance sentence by one-third and sentence each of them to 2 years and 8 months' imprisonment." (Appeal bundle pp. 47-48)

6. Long out of time though this application is, we are, of course, entitled to look at its merits.

7. In her reasons for applying out of time, the applicant made reference to the decision of this court in HKSAR v Lee Yuek-sing and others, CACC 515/2001 (and CACC 521/2001) where it was held, in a similar case to this, that there had been an error in principle for a judge, in November 2001, to have enhanced the sentences he imposed on the basis of prevalence at a time when this statistics revealed a decrease in the number of such cases since 1999. As the judge had correctly observed in the present case, this factor was again borne out by the statistics he was given, albeit there was an allegation from Chief Inspector Chan that a change in methods of operation had led to difficulties in detecting later culprits of this kind.

8. Mr Madigan, counsel for the respondent, has very properly drawn our attention to subsequent applications in HKSAR v Lin Yuet-ming, CACC 258/2003, and in HKSAR v Lau Wing-chi and others, CACC 29/2003, where the element of enhancement in the sentences imposed in those cases was again quashed in similar circumstances to those which have occurred in the application presently before us.

9. It is our view that there is nothing to distinguish this case from the earlier ones to which we have been referred. In such circumstances, Mr Madigan has conceded that the sentence passed on this applicant should not have been enhanced.

10. Accordingly, in the interests of justice, this application for leave out of time will have to be granted so that the element of enhancement is removed from the sentence the applicant is serving.

11. We should add that the applicant was later sentenced, without any element of enhancement, for her role in a similar conspiracy for which she received a further sentence of two years and eight months, of which one year and four months was ordered to run consecutively to the sentence the applicant is now serving. In this regard, we are informed that the applicant is due for release on 29 October 2004. If this is correct, and the applicant has agreed that it is, the course we propose to take today may result in the applicant, assuming her good behaviour while in custody, being released at a much earlier date.

Conclusion

12. We shall give leave to appeal out of time. Treating the hearing as the appeal, we shall allow the appeal by reducing the sentence of two years and eight months to two years which will have the effect of removing the element of enhancement from the sentence. To this extent the appeal succeeds.