HKSAR v. LIN YUET MING

CACC 258/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 258 OF 2003

(ON APPEAL FROM DCCC NO. 893 OF 2002)

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J U D G M E N T

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Hon. Cheung J.A. (giving the judgment of the Court):

Leave to appeal out of time

1. The applicant pleaded guilty to the offence of conspiracy to defraud. He was sentenced to two years and eleven months' imprisonment. He now seeks leave to appeal against the sentence out of time.

The fraud

2. The fraud was the usual Loco London Silver fraud in which the victims were duped into investing in some non-existing bullion transactions. 15 victims were involved and the amount lost by them was over $4 million.

3. The applicant was one of the fraudsters and acted as a manager in the operation.

4. There were other defendants involved in the fraud. They were also charged and convicted in the District Court (District Court Criminal Case No. 711 of 2000). The applicant was charged separately in this case.

The sentence

5. H H Judge Barnes used a starting point of four years' imprisonment. She reduced it by one-third because of the guilty plea and she further reduced the sentence by another four months because of the short duration that the applicant was involved with the fraud. The reduced sentence of two years and four months was then enhanced by 25 per cent, resulting in a final sentence of two years and eleven months' imprisonment.

6. The enhancement was made at the request of the prosecution pursuant to section 27(1) of the Organised and Serious Crimes Ordinance. The basis of enhancement was because of the prevalence of the offence.

The delay

7. There is a delay of about six months in lodging the application. The applicant's explanation for the delay is that he had intended to appeal immediately after the sentence was imposed. However, he was advised by the welfare officer in the prison that as the other co-conspirators in DCCC No. 711 of 2000 were appealing against the sentence, he might as well wait for their result before lodging his own appeal. He agreed. The appeal of the co-conspirators was successful (see HKSAR v. Tang Kwok Wing and others CACC No. 253/2001). Upon knowing this he immediately took out the present application.

8. We are satisfied that the applicant has given a good explanation for the delay. What is more important is that we are satisfied that he has a meritorious appeal.

Enhancement of sentence

9. The only issue in this appeal is the enhancement of the sentence. In Tang Kwok Wing and others the trial judge also enhanced the sentence. We pointed out in that case that, having considered all the circumstances, offences of this type were no longer 'prevalent' at the time of the sentence and the enhancement imposed by the judge was inappropriate. We further held that a starting point of four years' imprisonment already includes an element of deterrence.

10. This in fact was the approach that we had previously stated in cases like HKSAR v. Chiang Chun Wai and another (CACC No. 11 of 2001), HKSAR v. Wong Fung Ming and another (CACC No. 515 of 2001) and HKSAR v. Chung Chi King (CACC No. 504 of 2001 and CACC No. 361 of 2002). The same approach was followed after Tang Kwok Wing and others in HKSAR v. Lee Yuek Sing and others (CACC No. 515 of 2001).

11. The defendants in Tang Kwok Wing and others were sentenced on 10 July 2001. The present applicant was sentenced on 7 November 2002 but there really was no material difference in the circumstances of these two cases which would justify an enhancement in the sentence of the present one. The prosecution now accepts that the enhancement should not have been made. In fairness to the judge, counsel for the applicant who appeared before her (not Mr. Choy who only appears in this appeal) did not oppose the enhancement and the judge's attention obviously was not drawn to the authorities.

Further reduction

12. As to the further four months' reduction, the prosecution does not challenge the deduction. Given the limited time that the applicant was involved, the four months' reduction was appropriate.

Conclusion

13. Accordingly we will grant leave to appeal against sentence out of time. We will treat the application as the appeal proper. The sentence is reduced to two years and four months' imprisonment.