ATTORNEY GENERAL v. NG HAK YUNG AND OTHERS

APPLICATION FOR REVIEW NO. 10 OF 1987

IN THE COURT OF APPEAL

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JUDGMENT

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Penlington, J.:

1. This is an application for review by the Attorney. General pursuant to leave and Section 81A of the Criminal Procedure Ordinance of sentences passed by Barnes, J. on 4 defendants who we will refer to by the numbers that they had in the trial, that is the 4th, 6th, 7th and 8th defendants.

2. The respondents were charged together with 4 other defendants, two of whom (D3 and D5) were acquitted and two (D1 and D2) convicted of a conspiracy to defraud. D1 and D2 received sentences of 4 years, and 2½ years respectively. These sentences were imposed on the basis that D1 was the main organizer who had set up a highly elaborate and very carefully planned conspiracy to defraud and that D2 was very much his right-hand man in doing so and played a very substantial role. It was not in any way in dispute that the 4 applicants each played a considerably lesser role.

3. The conspiracy was to defraud members of the public in connection with the sale of motor cars and there is no need for us to go into the details of that scheme. The Crown supplied, in the form of particulars of the offence in the amended indictment, details of some nine overt acts which it was alleged had been performed by the defendants in carrying out the conspiracy. Mr Sulan who appears for the Crown here, argues that these defendants were involved, sometimes very actively involved, in at least seven of those nine acts.

4. The scheme was that advertisements were placed in newspapers saying that a motor car was for sale and that when a prospective purchaser replied, he would then be told by a "salesman" who was one of these defendants, that he had bought a car on hire purchase, which he now wished to sell on the basis that the purchaser would pay a deposit and assume liability for the future hire purchase payments. An “inspection fee” was also payable so as to transfer the insurance. Following agreement, the deposit and inspection fee was paid and documents were signed. It is quite clear that the purchasers were either duped by a misapprehension as to what was contained in those documents or it was said to them that a provision relating to payment of commission did not apply. As is so often the case, these persons were gullible; they signed these documents but later on were told they had to pay what were by any standards exorbitant sums by way of commission up to 200% in some cases. As was expected, the purchasers refused to go on with the contract, as a result of which they lost the amounts which they had already paid. There was evidence that the salesman would receive 50% of that amount.

5. It is argued by Mr Sulan that the sentences passed on these respondents, 6 months' imprisonment in the case of D4, D7 and D8 and 4 months in the case of D6, were manifestly inadequate because while the respondents were not the organizers, they were very much an essential part of this whole conspiracy which could not have been carried out but for the active role that they played as salesman. It is also argued that the trial judge was wrong in that he appears to have adopted a mathematical approach to sentencing by taking the number of cases in which each defendant was involved and passing a sentence on him proportionate to that imposed on the 1st defendant who was involved in all of them. There were 40 persons who were defrauded of a total of some $700,000. D4 and D7 were alleged to be involved in 5 cases each, D6 in 3 and D8 in 4 instances. Mr Sulan suggests that we should simply say that these 4 persons were essential participants in the whole conspiracy and that they should be treated on that basis. It is also argued that if one looks at the individual acts carried out by these respondents and regards them as in each case an attempt to obtain money by deception, that makes the sentences even more inadequate.

6. We are referred by Mr Sulan to various cases, but as is almost inevitable, most are of no great assistance because each must be considered on its own circumstances. In Chan Kin Man[1] another division of this Court said that where a firm is set up for the purpose of a deliberate fraud, it is unlikely that a sentence of 3½ years would be interfered with. As Mr Plowman for the respondents says it would seem that the trial judge had that in mind when he passed sentence on the 1st defendant. Another case of some assistance was an appeal against sentence by a Philippine woman who had come with others to Hong Kong with the intention of defrauding shopkeepers by the use of a false credit card R. v. Concesa Blancaflor[2]. There the respondent was persuaded into taking part in the scheme by somebody else, and played a lesser role, though she was an active participant. The amount obtained from shopkeepers over a period of some 3 days was $8,000. The Court, of which I was a member, did not interfere with a sentence of 21 months' imprisonment though I find, having re-read that decision, that anxiety over the level of sentence expressed there has not become any less. Nevertheless it was held that where there was a deliberate attempt to obtain money from shopkeepers by the fraudulent use of credit cards, even if a defendant did not play the leading role, such a level of sentence would not be reduced.

7. Mr Plowman has put forward all matters that could be argued for the respondents here. He says that there being only the one charge of conspiracy, the verdict of the jury does not make certain what role each of the respondents played and that the basic principle must apply that the court should take the view most favourable to each defendant in passing sentence. He said that on the basis of the charge as laid the judge had no alternative but to adopt the method that he did, to look at the number of instances which each defendant was involved with and that in relation to the sentence passed on the main culprit sentences of 4 and 6 months' imprisonment are correct. The Crown’s case is that each respondent received not more than $25,000 but that is not agreed. The respondents themselves say it was in the vicinity of $10,000 to $12,000. Mr Plowman argues that in any event the amounts received were not great.

8. It is also submitted that the respondents' personal particulars, especially as regards D8 contained in the antecedent statements put before the court were not accurate. D8 was said to be a single man, but in fact he is married, and has a young child and his wife has had to leave her home and to work to support that child and her mother-in-law. So far as the other defendants are concerned, we do not think: there was any major discrepancy or inaccuracy in the antecedent statements. They are all single, have a clear record and were supporting their families. That role has had to be taken over by others.

9. There are no clear authorities as to what attitude a Court should take when considering the role or a lesser participant in this type of conspiracy to defraud as compared with the major criminals. That is not surprising as the circumstances of each case are so widely different. We are satisfied that the sentences passed on D1 and D2 were correct and as Mr Plowman said, the Crown does not seek to review those sentences. While it is clear that these respondents did not plan or organise this conspiracy, they did play a full part in exchange for a big share of the amount obtained in each fraud in which they took part. They were the ones who interviewed the victims, and they were fully aware this was a total fraud and those persons would lose whatever money they were induced to pay over. The amount of commission which was demanded was such that quite clearly nobody would go ahead with the deal and it is only a matter of some amazement that the whole scheme was allowed to exist for as long as it did. It was the Crown's allegation in the indictment that the scheme had continued from the 1st of July 1984 to 13th of June 1985. Apparently however these respondents only joined in 1985. As Mr Plowman said they were joining what was already a thriving conspiracy to defraud and one which continued until eventually some of the victims took action to stop it.

10. The respondents defended this charge and the trial was a long one. No restitution has been made and we fail to see any real indication of genuine regret. Taking all those factors into account, we consider that the sentences passed were manifestly inadequate and that sentences of 18 months in each case would have been appropriate. This, however, being a review, the usual reduction should be made. The applications will be allowed and the sentences reviewed. We consider that each of the respondents is equally blameworthy and each will serve a sentence of 12 months' imprisonment.

[1]  Cr. App. 367/86

[2]  Cr. App. 294/86