HKSAR v. WONG TIN CHUK

CACC 761/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 761 OF 1997

(ON APPEAL FROM DCCC 272 OF 1997)

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

Introduction

1. This matter comes before this court as an application for leave to appeal against sentence out of time. On 11th March 1999, the court, differently constituted in part, dismissed an application made by the Applicant (A1) and allowed the applications made by two others (A2 and A3) for leave to appeal against conviction. The full background to the case is contained in the judgment already given by the court. It suffices to say at this stage that A1 was convicted, following a trial in the District Court before Judge Longley, of one offence of attempting to export an unmanifested cargo, namely 25 brand new left-hand drive vehicles, contrary to section 18(1)(b) of the Import and Export Ordinance, Cap. 60, and one offence of attempting to export prohibited articles, contrary to sections 6D(1) and (4)(b) of the same Ordinance. The second charge related to the same motor vehicles as the first.

2. The offences are specified in Schedule I of the Organised and Serious Crimes Ordinance ("O.S.C.O."), Cap. 455. The value of the 25 vehicles was $4.21m.

Prosecution's application for enhancement of sentence

3. After conviction, the prosecution applied under section 27 of O.S.C.O. for enhancement of the sentence. There were two bases for the application:

(i) the offence was serious: section 27(2) and 27(11); and

(ii) the offence was an organised crime within the meaning of section 2: section 27(4) and 27(11).

4. In regard to basis (ii), which is heavily criticised in these proceedings on behalf of the Applicant, it was said by the prosecution, and accepted in due course by the judge, that the offences were "organised" crimes in the terms set out in section 2(1) of O.S.C.O. because these were:

"related to the activities of 2 or more persons associated together solely or partly for the purpose of committing 2 or more acts each of which is a Schedule I offence, and involved substantial planning and organisation; ....."

5. In his sentencing remarks which were made on 16th December 1997, the judge went on to say:

"It is clear from my findings and my Reasons for Verdict that at the very least the 1st defendant associated with the same person or persons connected with Shing Fung Motors for the purpose of committing the scheduled offences which took place in December 1995, as well as those which are the subject of this trial. I am satisfied that both enterprises involved substantial planning and organisation.

Insofar as you, (A1) are concerned, you cannot claim, as (A2) and (A3) can, that you are a man of previous good character. Indeed, as I have mentioned, you played the leading role in a similar offence involving 32 brand new left-hand drive vehicles six months earlier in December 1995. At the time of the offences which are the subject of this trial, you had been charged with the offences you had committed in December and were awaiting trial. The fact that you were cynically prepared to commit similar offences again, endeavouring on this occasion to be more sophisticated in attempting to disguise your involvement, is perhaps the clearest indication of the profits which would have accrued to you if the enterprise was successful. On the evidence before me, you played the leading role in the events in June 1996.

In my view, the appropriate starting point in such circumstances is a sentence of 4 1/2 years' imprisonment. I am bound to bear in mind the overall sentence you will serve, bearing in mind that you were sentenced to 2 years' imprisonment in January this year for the offences you committed in December 1995. With that in mind, the appropriate sentence for each of the two offences of which I have convicted you is 3 1/2 years' imprisonment to run concurrently with each other, but consecutively with the sentence imposed on you in January 1997."

6. It can be added that the judge also awarded costs in the sum of $150,000 to the prosecution.

Chronology of applications for leave to appeal

7. Thereafter, A1 made application in proper time to appeal against conviction only. A2 and A3 made similar applications, which resulted on 11th March 199 in the quashing of their convictions. Following that hearing, A1 lodged his first application for leave to appeal against sentence, dated 11th May 1999.

8. Returning for one moment to the earlier chronology, it was in April 1998 that the prosecution submitted to the trial judge an application for a confiscation order under section 8 of O.S.C.O. On 22nd March 1999, that application was heard and determined and a confiscation order against A1 was made by consent. This was followed by a second application for leave to appeal against sentence which was dated 14th July 1999.

Right of appeal against confiscation order

9. Section 8 of O.S.C.O. confers a right of appeal in respect of confiscation orders. Its terms are as follows:

"For the purposes of any Ordinance conferring rights of appeal in criminal cases, a confiscation order made against a person shall be deemed to be a sentence passed on that person in respect of the offence or offences concerned ...."

10. From this deeming provision, it is plain that so far as the application for leave to appeal against the confiscation order is concerned, this was filed in time. The second amended perfected ground of appeal, to which we shall later turn, can be considered on this application as of right.

Late application relating to custodial sentence

11. What is less clear is whether the application, so far as it relates to the sentence of 3 1/2 years' imprisonment, can be said to be "in time", as Mr. Cheng, S.C. for the Applicant, submits. In this context, he has drawn our attention to the terms of section 2(16) of O.S.C.O. which state:

"(16) Proceedings for an offence are concluded on the occurrence of one of the following events-

.........

(e) the court or magistrate sentencing or otherwise dealing with (the defendant) in respect of his conviction for the offence where the (Secretary for Justice) either does not apply for a confiscation order, or applies for a confiscation order and the order is not made; or ....."

12. It is from this provision that Mr. Cheng argued that it must be the intention of the legislature to treat the eventual confiscation order, if granted, as part and parcel of the overall sentence imposed on a defendant, particularly as the trial judge must determine the application for confiscation.

13. We do not agree. The intention of this part of the legislature is merely to indicate when proceedings are concluded and, in the event of a confiscation order being made as in the present case, section 16(f) states that the proceedings are concluded on "the satisfaction of a confiscation order made in the proceedings (whether by payment of the amount due under the order or by the defendant serving imprisonment in default)".

14. The time when a confiscation order has been satisfied can have no bearing on the appropriate time to lodge an application for leave to appeal against the order itself. We have concluded that as a confiscation order is to be treated as a sentence for the purposes of appeal, an application must be made within the same time limits as any normal application for leave to appeal against a sentence which flows from conviction. The two proceedings, however, are completely separate, and the right to challenge a confiscation order does not in our view confer any additional right to seek leave to appeal against the sentence which has been passed for the offence itself which, having regard to its seriousness, will almost always be custodial by nature.

15. We are fortified in this view for a number of reasons. Firstly, the confiscation proceedings often take place many months after conviction, as they did in the present case. If A1 had a good ground of appeal against his custodial sentence, there was no sensible reason which required him to await the result of the confiscation proceedings. In any event, just because confiscation proceedings are pending, it does not follow that an order of confiscation will be made. In such an example, the long wait for confiscation proceedings to conclude, before filing an application for leave to appeal against the custodial sentence, would be to no purpose.

16. Secondly, Mr. Cheng seems to have submitted that either section 8(8A) of O.S.C.O. has the effect of stopping a convicted person from launching an appeal until after the confiscation proceedings have concluded or, perhaps more realistically, that the confiscation proceedings provide a second opportunity to file a notice of appeal against the sentence imposed for the offence after the 28-day statutory period has expired. Neither of these alternatives can be right. If the convicted person had to await the outcome of confiscation proceedings, he might, in some circumstances, have to wait until his sentence had been served. If, on the other hand, the confiscation proceedings gave the convicted person a second chance to file an application for leave to appeal against his sentence, this would leave him better off than a convicted person who had no confiscation proceedings pending and who must file his application within the statutory period.

17. Quite apart from these considerations, as Mr. Alex Lee, in his written response to the submissions made by Mr. Cheng, has been quick to point out, confiscation proceedings are not dissimilar to the provisions under the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap. 405. The procedure that we have put forward as correct, where appeals against sentence as opposed to subsequent confiscation orders are concerned, is currently also the practice where appeals under the Drug Trafficking (Recovery of Proceeds) Ordinance are concerned.

18. It follows that the application relating to the sentence of 3 1/2 years' imprisonment, as opposed to the confiscation order, is very considerably out of time.

19. Nevertheless, having regard to what is set out in A1's affirmation dated 8th May 1999, we took the view that the proper approach in the present circumstances was to hear the application relating to sentence de bene esse and to decide this application on its merits. In particular, what is said in paragraph 15 of the affirmation is as follows:

"Regarding the lateness of my application for leave to appeal against sentences, I have been ably advised by my legal advisers and verily believe that had it not been the results of the appeals against convictions by (A2) and (A3), there was no responsible grounds for any appeal against my sentences before the handing down of the judgment on the appeals against convictions of (A2) and (A3) by this Honourable Court."

20. In effect, therefore, A1's complaint is that the quashing of the convictions of A2 and A3 has given rise for the first time to a proper foundation for an appeal against sentence which did not previously exist, namely, that these crimes can no longer be described as "organised" within the meaning of section 2 of O.S.C.O.

Grounds of Appeal

21. The complaint is encapsulated in the three grounds of amended perfected grounds of appeal which Mr. Cheng has advanced. These are that:

"Ground 1

In the light of the Court of Appeal's Judgment (Criminal Appeal No. 761 of 1997) dated 11th March 1999 the offences to which the Applicant was found guilty are no longer 'organized crimes' within the meaning of section 2 of the Organised and Serious Crimes Ordinance, Cap. 455.

Ground 2

If the offences were not 'organised crimes' the confiscation order imposed on 22nd June 1999 was a nullity.

Ground 3

The learned trial judge erred in adopting a starting point of 3 years of imprisonment for each of the offences. Alternatively, the concurrent sentences of 31/2 years of imprisonment imposed are manifestly excessive or wrong in principle."

22. These grounds can conveniently be dealt with together. It is immediately apparent that heavy reliance is placed on the first ground of appeal before the other grounds can be regarded as having any chance of success.

23. Mr. Cheng's principal submission was that the judge should not have found that these were 'organised crimes' because the terms of section 2 of O.S.C.O., which we have earlier set out, as to the interpretation of an "organised crime", were not satisfied in two respects. Mr. Cheng, while accepting that these were Schedule I offences and that substantial planning and organisation lay behind the offences, submitted that there was no sufficient evidence, now that A2 and A3's convictions have been quashed, relating to the activities of two or more persons associated together and that such activities were solely or partly for the purpose of committing two or more acts, each of the acts being a Schedule I offence.

24. Mr. Cheng further submitted that even if the offences involved the complicity, as the judge had found, of someone in Shing Fung (where the vehicles were delivered and which thereafter filed Dismantlement Notices with the Customs and Excise Department which would lead that department to assume that the vehicles were to become vehicle parts and would therefore be outside the import and export control scheme) it had not been proved that the person filing the false Dismantlement Notices must have been aware of their falsity. In other words, he submitted, it was reasonably possible that A1 was guilty without the criminal involvement of anyone else.

25. Mr. Cheng's argument completely overlooks one fundamental matter to which reference had already been made. The prosecution's application in the court below for enhancement of sentence under section 27 of O.S.C.O. was based not on one, but two grounds. The first ground was that the offence was serious under section 27(2) and (11). The relevant sections in O.S.C.O. read as follows:

"(2) The prosecution may furnish information to the court regarding any or all of the following:

......

(b) the nature and extent of any benefit, whether financial or otherwise, that accrued or was intended to accrue, directly or indirectly, to that or any other person from that act;

......

(11) Subject to subsections (12) and (13), where a court is satisfied beyond reasonable doubt-

(a) that the specified offence was an organized crime; or

(b) as to any information furnished under subsection (2) or (8),

or where any such matter is agreed by the person convicted, the court shall have regard to such matter when it passes a sentence on the person for the relevant specified offence and may, if it thinks fit, pass a sentence on the person for that offence that is more severe than the sentence it would, in the absence of such matter, have passed.

(12) If an application has been made for a confiscation order under section 8, the court shall not have regard for the purpose of subsection (11) to any proceeds of a specified offence or organized crime to which the application for the confiscation order relates.

(13) A sentence passed pursuant to subsection (11) shall not exceed the maximum penalty permitted by law for the offence."

26. In support of this ground for enhancement of sentence, the prosecution called evidence from Superintendent Leung Chi-chu which established that over $6.7m Hong Kong dollars in Chinese taxes and tariffs would have been evaded if this smuggling exercise had succeeded. The judge accepted this evidence.

27. On this basis alone, it is clear that the judge was fully entitled to have enhanced the sentence under section 27 of O.S.C.O. Plainly, smuggling on this level has to be deterred. The Applicant had been legally represented all along and, as paragraph 15 of his affirmation illustrates (which has earlier been cited), if the judge was justified in enhancing the sentence, which we have found he was, there exist in the words of the affirmation "no responsible grounds for any appeal against his sentences".

28. We should add that even if the judge had enhanced the sentences only because he found the crimes to be "organised", which was the other ground for his having done so, we cannot accept that the subsequent quashing of A2 and A3's convictions have any bearing upon this course. In the passage taken from the judge's Reasons for Sentence, which has been read already, he did not rely on any association with A2 or A3 and, just to repeat the words, he said:

"It is clear from my findings that at the very least (A1) associated with the same person or persons connected with Shing Fung Motors for the purpose of committing the scheduled offences which took place in December 1995, as well as those which are the subject of this trial....."

Furthermore, as Mr. Lee in his written skeleton correctly pointed out, it is not a requirement of section 2 of O.S.C.O. that two or more persons have to be convicted of the same offence before the offence qualifies as an "organised crime".

Conclusion

29. There is no merit whatever in any of the submissions which have been put forward on behalf of the Applicant. The sentences were in our judgment entirely justified. Mr. Cheng had proposed to advance one further ground of appeal which related to the order for costs but, having discovered after reading Mr. Lee's skeleton that this was groundless, he quite rightly decided not to pursue it.

30. Accordingly, we refuse to give leave out of time so far as sentence is concerned and we dismiss the application in relation to the confiscation order.