HKSAR v. LAU WING CHI AND OTHERS

CACC 29/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 29 OF 2003

(ON APPEAL FROM DCCC 762 OF 2002)

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J U D G M E N T

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

1. On 16 December 2002, Lau Wing-chi (D1) pleaded guilty to a conspiracy to defraud in the District Court before Deputy Judge Candy. On the following day, Fung Wai-nam (D3) also pleaded guilty to this charge. Cheung Man-tat (D2) contested the charge and was convicted on 23 December 2002. On 3 January 2003, D1 was sentenced by Deputy Judge Candy to two and a half years' imprisonment and D3 received a sentence of three years and four months. On 10 January 2003, D2 was given by the same judge a sentence of five years' imprisonment.

2. The Applicants (D1, D2 and D3) now seek leave to appeal against sentence.

3. The conspiracy related to what is commonly referred to as a Loco London Silver scam. There were seven known victims who invested their money in the scam which purported to engage in honest trading from relatively plush offices on the 4th floor of the Landmark Building, Ice House Street, under the name of Max Giant Holdings Limited. The losses suffered by the victims amounted to about $2.718 million.

4. There was one common point of substance in this application. Prior to sentence, it appears that prosecuting counsel applied for the sentences of each Applicant to be enhanced by virtue of section 27(4) of the Organised and Serious Crimes Ordinance, Cap. 455 which provides that:

"(4) If the prosecution so requests, the court shall determine whether the evidence adduced at the trial or, if the conviction followed a plea of guilty, the matters accepted by the court prior to conviction show that the specified offence was an organised crime."

However, the definition of an "organised crime" in section 2 provides, amongst other things, that it must be a "Schedule 1" offence.

5. Conspiracy to defraud is not a Schedule 1 offence. It is included only in Schedule 2. Unfortunately, the judge fell into error in accepting the prosecutor's erroneously based application to enhance the sentences. This was not corrected by any of the three experienced counsel then appearing for the defence, each of whom in turn allowed their clients, without demur, to receive sentences enhanced by 25 per cent when these were plainly contrary to law. None of those counsel appear in these proceedings today.

6. In the result, therefore, each of the sentences imposed in this case must in any event be reduced by the amount of the enhancement.

7. We should add, in regard to D1, that apart from the discount she received for her plea of guilty, she received a further discount in addition which reduced her sentence by a total of 50 per cent. This brought her sentence down to two years before the enhancement which was added by the judge took it to two and a half years. The reason for this was that she had not only provided statements against D2 and D3 but she had also testified against D2 at his trial. There is, however, in D1's case a further factor which only fully emerged during the course of these proceedings. In short, she has provided further significant assistance to the authorities in relation to another matter which enables us, in her case, to take an exceptional course.

8. It is accepted, for the reasons we have given that leave must be granted. The sentences, which the judge properly assessed before enhancement, were two years' imprisonment for D1, four years' imprisonment for D2 and two years and eight months for D3. Treating the hearing as the appeal, each of the appeals will be allowed and the present sentences will be quashed. In their place, D2 and D3 will serve the sentences which would have been imposed if the judge had not enhanced them by 25 per cent. In D1's case, she has approximately three and a half months to serve assuming early release for good conduct, and we are told that she has been a model prisoner. For the wholly exceptional reason already given in her case, we propose to order that she should receive such sentence as will enable her immediate release.

9. As to the remaining sentences, these will now be reduced to the following terms of imprisonment:

D2 will serve four years; and

D3 will serve two years and eight months.

10. To this extent, these appeals succeed.