HKSAR v. YEE HING CHUNG AND OTHERS

CACC 287/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 287 OF 2005

(ON APPEAL FROM DCCC NO. 21 of 2005)

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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.  These applications against conviction and sentence concern yet another well-organised and familiar scam to do with gold and silver trading charged as a conspiracy to defraud (charge 2).  This involved false representations to gullible members of the public during March and April 2004 that the company with which the applicants (D1, D3 and D4) were associated would properly invest their money.  Deputy Judge Livesey heard the case in the District Court and convicted the applicants for the compelling and thorough reasons she provided when announcing the verdicts after a trial involving 25 prosecution witnesses and lasting 17 days.  None of the applicants gave evidence on the substantive issues.  The 1^st charge (forgery) concerned D1 alone and on this he was also convicted.

2.  In normal circumstances, formal written judgments are unnecessary for single judge applications for leave to appeal against conviction or sentence.  However, the position of D3, Ng Fung-kam, Grace, as regards the application she has made to appeal against conviction, makes it necessary to depart from the usual procedure.

D1’s applications

3.  All I need to say in D1’s case is that because there was comparatively little evidence against him when compared to the others on trial with him, he seems to think that he ought not to have been convicted and that, for such a small involvement on the facts, his sentence of 4 years’ imprisonment was too long.  I am unable to agree and I find myself instead in agreement with the way the judge expressed D1’s involvement, namely, that this was “essentially in the renting of the premises and his participation in setting up the company”.  However, it went further than this as the judge also pointed out, saying:

“170. I have already convicted D1 in relation to the first charge.  He was not only concerned in signing the tenancy agreement; I was also satisfied that he was concerned in the setting-up of the business New Profit.  The setting-up of the company and the provision of premises is essential to the carrying out of the conspiracy.  I accepted the evidence of PW13 that D1 was seen at the said premises during his observations.  I noted that no other witness identified him as being at the said premises.  However, his fingerprint was found on two of the application forms found at D3’s premises.  I noted their positions as set out in the Admitted Facts.  However, in my judgment the only inference which can be drawn from the presence of his fingerprint on any of the application forms is that he was also involved in the business after it was set up and whilst it was in operation.

171. Again, the only inferences which can be drawn, in my judgment, are that he was fully involved in the conspiracy to defraud and I convict him accordingly.” [Appeal bundle pp. 47–48]

4. There is in my opinion no merit in the grounds of appeal raised by D1 so far as conviction is concerned including the brand new ground raised for the 1^st time today relating to his payment of money to Mr Ivan Tang (his solicitor at trial) so that his brother-in-law might be represented by Mr John Dunn (the prosecutor at trial) for the purpose of applying for the unfreezing of a personal account.  Mr Tang has been spoken to both by my clerk Ms Amy Leung and by Mr Lee for the respondent and it is apparent that there was no conflict of interest.

5.  D1’s sentence was 4 months longer than his co-defendants received although all of them were treated on an equal footing so far as their criminality was concerned.  This slightly longer sentence was because the others received discounts for their previous good character and, in some cases, nearly clear records.  D1 had previously served 3 years and 8 months’ imprisonment for conspiracy to defraud.  On the present facts, involving a conspiracy which was only able to operate for about 2 months before the arrests took place and where less than $700,000 was obtained by fraud, 4 years was plainly appropriate.  D1’s applications are, therefore, dismissed.

D4’s applications

6.  Almost all the same considerations apply in D4’s case.  The judge accepted the evidence of two victims (PWs 5 and 6) and from these findings was able to draw the inference that D4 was “fully aware of the fraud and was playing her part in the scheme”. Having considered the Reasons for Verdict on this aspect of the case, it is apparent that the judge was entitled to have drawn this conclusion.  There are no justifiable grounds for complaint about D4’s conviction or sentence and her applications are dismissed.

D3’s applications

7.  This leaves D3 against whom there was a wealth of evidence, so much so that, unusually, I have decided that it may be appropriate to exercise the power under section 83W of the Criminal Procedure Ordinance, Cap. 221, given to a single judge on an application for leave to appeal in the manner set out by P Chan, PJ in Chau Ching-kay v HKSAR [2002] HKCFAR 540 at 558-567.  In due course, I shall hear from D3 on the matter.

8.  D3 made a full confession to her role in the offence in the course of 2 interviews which had been properly admitted in evidence.  In addition, D3 was observed by an undercover officer (PW 11) at the company premises where the fraudulent objectives of the conspiracy were put into effect.  PW 11 was “interviewed” for “employment” by D3 on 18 March 2004 and D3 was also seen at the premises on 17 March 2004 and again on 2 April 2004 by another police officer (PW 13).  Perhaps the most compelling evidence of D3’s involvement to be placed alongside her detailed confession was the finding at her home of 97 job application forms, a central feature of the fraudulent activity involved in the conspiracy.  Her fingerprints were on 32 of them and also on a share allotment letter found at her address.  The evidence against D3 was overwhelming and the sentence she received was amply justified.  D3’s applications are dismissed.

Loss of time

9.  Having now heard D3 on the question of loss of time, I am satisfied that her application for leave to appeal against conviction was frivolous and I make the order that 2 months of the time D3 has spent in custody awaiting this hearing shall not be reckoned as part of the term of the sentence she is now serving.

10.  I should say that so far as all the applicants are concerned, if they wish to renew their applications for leave to appeal against conviction or sentence or both to the full Court of Appeal, they should do so within 14 days.  It is only fair to warn them all that if they do so, and the Court of Appeal finds no merit in the applications, loss of time may be ordered.  This applies as much to D3 as to the other applicants because the full court may, if it considers there is no merit in an application which is made, order further loss of time on the renewal of an application.