HKSAR v. TSE FU SUN

CACC 322/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 322 OF 2005

(ON APPEAL FROM DCCC NO. 1418 OF 2004)

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 BETWEEN

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J U D G M E N T

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1. This is an application for leave to appeal against both conviction and sentence.  The applicant, Tse Fu Sun, was charged, together with his wife and brother, with various offences.  He was tried before Deputy Judge K Browne in the District Court and was on 15 July 2005 convicted of a total of 11 charges after trial.

2. Six of those charges relate to the obtaining of either services or property by deception; two relate to possession of identity cards belonging to others; one relates to possession of a forged two-way permit; and the remaining two relate to his being a tenant of premises which he permitted or suffered to be kept as vice establishment. 

3. For the obtaining by deception offences, the judge passed a sentence of 6 months on each, for the possession of other person’s identity cards and the forged two-way permit, the judge passed a sentence of 12 months on each, and for the permission of premises to be kept as vice establishments, the sentence passed was 4 months on each.  The judge ordered some of the sentences or part of them to run concurrently, and taking into account the totality principle, passed an overall sentence of 2 years and 6 months on the applicant.

4. The grounds of appeal shown in the notice of application are simply that the conviction is unsafe and unsatisfactory and the sentence is too excessive. 

5. The evidence against the applicant consists of the testimonies given by police officers who arrested him and who took cautioned statements and interviewed him under video-recording, the physical evidence of finding at his home a forged two-way permit, the identity cards of other persons and utility bills addressed to those other persons, the physical evidence of the two premises that had been kept as vice establishments, such as keys to the premises, tenancy agreements in the applicant’s name, paraphernalia for sexual services and photographs taken of the set up of the premises, as well as the evidence of men who went to the premises for sexual services provided by prostitutes.

6. The applicant challenged the admissibility of his cautioned statements and interviews.  The prosecution witnesses gave evidence; he also gave evidence on this issue.  Having considered the evidence, the judge accepted the prosecution witnesses as truthful and reliable and admitted the applicant’s statements. 

7. The applicant did not give evidence or call any witness on the general issue.  The judge considered the admissions made by the applicant, his exculpatory remarks, the prosecution’s oral and physical evidence, and came to the conclusion that the charges were proved beyond all reasonable doubt, as a result of which he convicted the applicant.  Having read the judge’s Reasons for Verdict very carefully, I do not find anything that may indicate that any of the applicant’s convictions is unsafe or unsatisfactory.

8. Before me, the applicant said that the service-providers knew that he was using other persons’ identity cards when applying for the services which they agreed to provide with that knowledge.  I did not allow the applicant to expand on this matter as he was attempting to adduce fresh evidence.

9. Regarding the sentences, I consider that the judge had rightly considered the relative seriousness of the offences and imposed sentences on them, which can be said to be lenient.  His orders relating to making the sentences concurrent or consecutive are supported by sound reasons, and the overall sentence of two and half years’ imprisonment is, in my judgment, neither against principle nor manifestly excessive.

10. In the circumstances, I do not consider that there is any arguable ground of appeal against conviction or sentence.  Accordingly, I refuse to grant leave.

11. I remind the applicant that he is entitled to have the application determined by the Court of Appeal by way of a fresh application which must be made within 14 days of today.  I warn him that if the Court of Appeal, when dealing with the fresh application, is of the view that it has no merit, it can order a loss of time that he has spent in custody to be taken away from the counting of his service of the term of his imprisonment, and that the Court can also increase sentence.