HKSAR v. YUNG CHI LOK

CACC 504/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 504 OF 2001

(ON APPEAL FROM DCCC NO. 1184 OF 2000)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court) :

1.  On 30 October 2001, this applicant was sentenced by Judge Christie in the District Court to a term of seven years imprisonment for two offences.  He now seeks leave to appeal against the sentence imposed for one of those offences.

2.  The first charge was conspiracy to defraud.  The applicant was the third defendant amongst eleven.  It was alleged that they conspired to defraud persons who were induced to give them money upon a false representation that the defendants were conducting a genuine business in the name of a company known as Champion Market purportedly trading in silver and gold.  Advertisements were placed which attracted innocent members of the public to seek and obtain employment with the company for routine jobs as office assistants or cleaners but, once in place, they were lured into making investments in trades that never took place and consequently lost substantial sums of money.

3.  The guile used and the cruelty visited upon innocents was calculated and prolonged.  The scheme commenced in September 1998.  On 2 November 1998, the police raided the premises and the applicant admitted to them that he was the person in charge.  He occupied the manager’s office and in addition to overseeing the operation he also managed various teams and actively engaged with individual victims to defraud them of monies.  The police raid made no difference to him for, with some of the others, he continued the fraud after that raid.  The judge found that he was the person in charge from September 1998 to April 1999.

4.  This applicant was on bail pending trial and, after one of the pre-trial reviews, he absconded and the trial took place in his absence.

5.  He was convicted.  The judge found that he presided over losses exceeding $7 million although the judge was satisfied that even a larger amount had been lost by victims who did not report to the police.

6.  The judge took a starting point of five years imprisonment and increased that to six years to give effect to the aggravating factor constituted by the applicant continuing the fraud after the police raid.  He reduced that total by six months to give effect to what he viewed as the mitigating factor of the applicant’s previous good character.  He then enhanced that sentence by 25% on account of the suggested prevalence of the offence, applying s.27 of the Organized and Serious Crimes Ordinance, Cap 455.  This resulted in a sentence on charge 1 of 6 years 10 months imprisonment.

7.  There was a second charge.  This alleged against the first seven defendants failure to comply with an order of the High Court made under s.4(2) of the Organized and Serious Crimes Ordinance to produce certain documents to the police.  This applicant was the only one of those seven who was convicted of this offence.  In this regard, the judge fixed the sentence of two months imprisonment “lest I exceed my jurisdiction”. The maximum term of imprisonment available for this offence is 12 months imprisonment.

8.  On 13 October 2008 the applicant surrendered to the police.  He says in an affirmation that he had come to the conclusion that he could not spend the rest of his life running from the authorities.

9.  His application for leave to appeal against the sentence is dated 22 October 2008 and it is directed at the sentence in respect of the first charge only.

10.  It will readily be apparent that the application is made substantially out of time and, accordingly, the applicant seeks an extension of time in which to make his application.

11.  Only rare circumstances would warrant an extension of time so long after sentence.  The matter upon which the applicant relies is that a co-defendant, who was D4 at trial, successfully appealed against sentence on the basis that the judge erred in principle in enhancing sentence because of a supposed prevalence of the offence at the date of sentencing.  D4 was the appellant in HKSAR v Chung Chi King CACC 504 of 2001, 4 March 2003, unreported.  That Court examined the figures for the particular type of fraud, known as Loco London gold and silver fraud, between 1997 and 2001 and concluded that after the offence had “peaked” in 1999 the numbers declined significantly thereafter and that “there was clearly a substantial reduction in the number of victims and also in the amount lost by victims by August 2001.  It cannot be said that an offence of this type was so prevalent at the time of the sentence in October 2001 that it would require the Court to enhance the sentence as a means of deterrence”.

12.  Where there has been an error of principle of this type and which, in addition, has been recognized in favour of a co-defendant, a sufficiently exceptional circumstance is made out to warrant an extension of time in which to apply for leave and, accordingly, we grant that extension.

13.  We are surprised that the judge accorded a discount in sentence on account of the applicant’s supposed previous good character.  This was hardly a spontaneous offence committed on an isolated occasion such that it might be categorized as out of character.  It was carefully planned, and innocent persons were swindled day in, day out after a prolonged period, and a police raid brushed off as of no consequence.  This was decidedly not an appropriate case in which to treat the absence of previous convictions as a mitigating factor.  But for the fact that two other defendants in the same case were given credit by the same judge for the absence of prior convictions, we would, in the reassessment occasioned by the enhancement error, have accorded no such discount.

14.  In the event, we grant the applicant leave to appeal against sentence and treating the hearing of the application as the appeal, we allow the appeal in relation to the sentence on the first charge, set aside the term of 6 years 10 months and substitute therefore a term of 5 and a half years imprisonment, which is the term the judge would have imposed but for the enhancement.

15.  Although the appellant does not expressly seek leave to appeal against the sentence in relation to the second charge, it is open to this Court, by reason of s.83I of the Criminal Procedure Ordinance, Cap 221, to treat the application for leave in relation to the first charge as an application in respect of both charges.

16.  By an order dated 1 June 2000, Bokhary J ordered the appellant, and others, to produce within seven days all accounting records of Champion Market since its inception including financial statements, bank statements, cash movement records, accounting ledgers, records of expenses, and other documents prepared or kept by the company.  That order was simply ignored and the appellant was duly convicted of failing to comply with that order, an offence contrary to s.4(13) of the Organised and Serious Crimes Ordinance.

17.  The sentence of two months imprisonment imposed in respect of that charge was, with respect, entirely inadequate.  In imposing that sentence merely to ensure that the judge did not exceed the sentencing jurisdiction of the District Court, he erred in principle in the manner in which he proceeded.  It is fundamental that a sentence passed for an offence must be appropriate to the circumstances of the offence itself and if an adjustment is to be made to the totality, whether for the reason given by the judge or for any other appropriate reason, then that adjustment should be made, not by tampering with the appropriate sentence for the offence, but by ordering the sentences to run partially or wholly concurrent, as may be apt.

18.  Mr Ng, for the applicant, suggested that charge 2 added nothing in that the documents sought went only to establish whether the company was genuine or not.  That, to a limited extent, may be so, but nonetheless the failure to produce documents was itself quite deliberate and a separate offence and, secondly, some of the documents which no doubt the company had – and we see from the exhibits that documents were seized - would disclose or might have disclosed the extent of the fraud and the identity of some victims.

19.  In our judgment, an appropriate sentence in respect of charge 2, after trial, was in this case one of 10 months imprisonment.  We set aside the sentence of two months imprisonment imposed and substitute therefore a sentence of 10 months imprisonment.  We order that sentence to run consecutively to the sentence of 5½ years imprisonment in relation to the first charge, making a total of six years four months imprisonment.