HKSAR v. WU PING YANG, JIMMY

CACC 293/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 293 OF 2014

(ON APPEAL FROM DCCC NO. 114 OF 2012)

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J U D G M E N T

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1.  On 25 August 2014, the applicant pleaded guilty before HH Judge Browne in the District Court to one charge of using copies of false instruments, contrary to section 74 of the Crimes Ordinance, Cap 200 (“Charge 1”); and one charge of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221 (“Charge 2”). He was sentenced on the same day to 4 years and 3 months’ imprisonment on Charge 1, and 2 months’ imprisonment on Charge 2, which was ordered to be served consecutively to the sentence on Charge 1, making a total sentence of 4 years and 5 months’ imprisonment.

2.  The applicant filed a Notice of application for leave to appeal against sentence on 3 September 2014, and subsequently an application for leave to appeal against conviction out of time on 27 January 2015.  By an affirmation, the applicant explained that as he is a Taiwanese national with a heavy Minnan accent, he might not have clearly communicated his intention of appealing against conviction to the welfare officer during the filing of the earlier notice of application for leave to appeal against sentence; hence the delay in lodging the latter application.

The facts

3.  On 15 October 2010, the applicant, who was a Taiwanese national but not resident in Hong Kong, went to a branch of Citibank in the Cheong Hing Building in Nathan Road, Kowloon, where he was served by one Ms Tam Chi Sum (“PW1”).  He informed PW1 that he required certain investment services and would be using the account for transactions exceeding US$1 million.  Having assisted the applicant to open a personal bank account with the account number of 84711280 (“the account”), PW1 told the applicant that because of the large amounts that were intended to go through the account, there would need to be some proof of the source of funds so as to ensure that the funds were not part of criminal proceeds.

4.  Four weeks later on 12 November 2010, the applicant returned to the bank, where he was again served by PW1.  At that time, he produced five documents, all dated 18 October 2010 (collectively referred to as “the documents”), the subject-matter of Charge 1.  The documents were purportedly issued by Citibank Singapore relating to the applicant’s account with the Singapore branch (“Singapore account”), namely:

(a) A letter dated 18 October 2010 confirming “funds availability” of account number 5344-1647-23 held in the name of “Mr WU, PING-YANG”;

(b) A “Confirmation of account balance” dated 18 October 2010 of account number 5344-1647-23 held in the name of “Mr WU, PING-YANG”;

(c) A “Tear Sheet” dated 18 October 2010 of account number 5344-1647-23 held in the name of “Mr WU, PING-YANG”;

(d) A letter dated 18 October 2010, regarding “Confirmation of Account Status”; and

(e) A “Proof of Fund” dated 18 October 2010 of account number 5344-1647-23 held in the name of “Mr WU, PING-YANG”.

5.  According to the documents, there was US$10 billion in the applicant’s Singapore account.  The applicant also produced a letter signed by himself authorising the disclosure of information regarding the Singapore account.  It was specifically admitted that when the applicant presented these documents to PW1, he knew or believed that the documents were false and that he presented them in order to deceive her into accepting them as genuine, thus causing prejudice to the bank.[1]

6.  The documents which he had presented to the bank were subsequently passed on to Ms Sze Wan Tan (“PW2”) on 12 November 2010.  PW2 made enquiries as to the documents’ authenticity with the Compliance Department of Citibank Singapore and was later informed that the documents were not issued by Citibank and, furthermore, the account number 5344-1647-23 did not exist.

7.  The applicant was arrested on 7 December 2011 when he entered Hong Kong via the Lo Wu Control Point.  In a subsequent cautioned video recorded interview, the applicant admitted that he had opened a bank account at Citibank Hong Kong.  He accepted that he had presented the documents to PW1 and claimed they were copies which had been printed out from his e-mail.  The applicant further said that due to the size of his deposit in the Singapore account, not every bank staff member could access the account information, and it could only be accessed by a “Swift” password code system.  The applicant maintained that as at 12 November 2011, he had US$10 billion in the Singapore account and was the owner of the said Singapore account.  The Sales Department could not access the information without a certificate for funds from him.

8.  The applicant was eventually released on bail in the sum of HK$100,000 and was due to stand trial at the District Court on 28 May 2012.  However, the applicant did not attend as required and absconded. His bail was thereby revoked and a warrant of arrest was issued.  On 26 March 2014, the applicant was re-arrested in Central, Hong Kong, and brought back to Tsim Sha Tsui Police Station.  Under caution, he remained silent.  The applicant accepted that he had failed to surrender himself to custody without reasonable excuse.

Reasons for sentence

9.  The applicant was 63 years of age at the time of his sentence.  He was born in Taiwan and was educated up to university level.  He operated his own investment business and earned the equivalent of about HK$20,000 to HK$30,000 per month.  The applicant was married with two daughters, aged 19 and 31 years respectively.  His wife suffered from Lupus disease, for which she was receiving medical attention.  His elderly parents were in their nineties and his brother was in frequent need of medical attention.

10.  In considering sentence, the judge referred to the unusual history of the case.  The applicant had initially pleaded not guilty to the two charges.  The trial proceeded and, on the day when the verdict was to be delivered, the applicant indicated that he wished to call further evidence.  The matter was accordingly adjourned.  Subsequently, the applicant dismissed the counsel who had represented him at the trial, and the case was adjourned on two further occasions with a view to engaging a new counsel and to bringing further defence witnesses before the court.  In due course, when the trial resumed, the applicant’s new counsel informed the court that there were no further witnesses to be called.  The applicant then applied through his new counsel to change his pleas to guilty to both charges.  This he did at a further adjourned hearing, while also admitting the re-amended Summary of Facts.

11.  In relation to Charge 1, the judge was of the view that the offence could not have been committed on the spur of the moment since it obviously involved a degree of planning.  He also considered that there was an international dimension to the case since the applicant had come from Taiwan to open a bank account in Hong Kong with a view to introducing substantial sums of money into the account from a non-verified source; he appeared to be familiar with the banking system in Singapore; the false documents uttered in Hong Kong purported to be issued by a bank in Singapore; and he claimed to have been employed by an American company with business connections with companies in the mainland and elsewhere.

12.  The judge adopted a starting point of 4 years and 6 months’ imprisonment, which he discounted by 3 months in view of the late plea of guilty just prior to the delivery of verdict.  Thus, the sentence on Charge 1 became 4 years and 3 months’ imprisonment.

13.  In relation to Charge 2, the judge did not accept that the applicant had been threatened by a police officer as alleged in his evidence at the trial, as a result of which he had failed to answer his bail.  The judge considered an appropriate sentence should be 2 months’ imprisonment[2], and ordered that the sentence should run consecutively to the sentence on Charge 1, making an overall sentence of 4 years and 5 months’ imprisonment.

Grounds of appeal

Appeal against conviction out of time

14.  Notwithstanding his pleas of guilty at trial, the applicant raises three grounds of appeal against conviction:

(1) The documents, the subject matter of Charge 1, were all genuine, and the applicant seeks to adduce fresh evidence to show that they are genuine;

(2) A staff member from Citibank Singapore had agreed to come to Hong Kong and testify for the defence, but the judge declined to adjourn the hearing so as to give sufficient time for such an arrangement to be made; the judge also threatened the applicant that he would receive a heavy sentence should he plead not guilty;

(3) Counsel initially appointed by the Director of Legal Aid improperly forced the applicant to plead guilty, under pressure from the judge. (For the purpose of putting forward this ground, the applicant indicated that he would waive legal professional privilege.)

Notice of Motion to adduce fresh evidence

15.  By a Notice of Motion dated 21 July 2015, the applicant applies to admit fresh evidence for the purpose of the appeal.  The applicant applies for the admission of nine items of fresh evidence:

(a) A set of five documents all dated 18 October 2010, which were allegedly sent by the manager of Citibank Singapore via email on 30 January 2015; with copies of email records;

(b) A confirmation letter dated 26 January 2015, purportedly signed by the Vice President of Citibank Singapore, confirming the balance in the account from 13 November 2008 to the date of the letter, and also to confirm that the funds were clear of any criminal origin;

(c) A set of five documents all dated 29 January 2015, which were allegedly sent by Citibank Singapore once or twice annually;

(d) A notification of a bank transfer from Citibank Singapore to HSBC Hong Kong (Swift MT542) in the sum of US$10 billion, dated 21 November 2012;

(e) A notification dated 23 November 2012, confirming that the bank transfer from Citibank Singapore to HSBC Hong Kong made on 21 November 2012 (Swift MT542) was verified and authenticated by HSBC Hong Kong;

(f) A set of Co-operative Financing Agreement dated 8 November 2012, in which the applicant was named as a party;

(g) A document issued by HSBC Singapore in relation to a bank transfer of a sum of US$2.6 million;

(h) A document showing the transfer of funds (Swift MT760) upon approval by Citibank Singapore and witnessed by a lawyer[3]; and

(i) A co-operation agreement dated 9 January 2012, for the “World Capital Program” purportedly signed by the applicant and witnessed by a Commissioner for Oaths at the Home Affairs Department in Hong Kong[4].

16.  In his affirmation dated 21 July 2015, the applicant averred that the reason for adducing fresh evidence was to do justice to the appeal, so that the truth will come out and the conviction may be overturned[5].  However, no explanation was provided as to why the new evidence was not adduced at trial, although, before me, he has attributed this decision to his lawyers.

17.  In oral arguments before me, the applicant has once again stressed that the authorities in Hong Kong have been asking the wrong people in Citibank about the Singapore account, and that only his private bankers would be allowed access to information about his finances.

Trial counsel’s affirmation

18.  In response to the applicant’s allegations, inter alia, that his trial counsel had forced him to plead guilty under pressure from the judge, the counsel in question has made a response by way of affirmation dated 29 October 2015.

19.  Trial counsel denies having said anything to make the applicant plead guilty.  He confirms that he did discuss the question of the plea with the applicant after the close of the prosecution case on 4 July 2014.  At that time, he advised the applicant as to the weight of the prosecution case against him.  He specifically advised the applicant that a prosecution witness had confirmed that the two senior bank officers named on the documents, which were alleged to be forged, were not bank staff of Citibank; and that Citibank Singapore had no record of the applicant’s Singapore account.  He also counselled that there was a lack of independent witnesses and documentary evidence to support the defence case.

20.  Trial counsel maintains that he told the applicant that it was the applicant’s decision alone as to whether he should plead guilty, but that if he was to plead guilty at that stage (namely, the close of the prosecution case), he would still receive a discount on sentence, although it would be less than one-third.  The applicant instructed trial counsel and his solicitor that he would maintain his plea of not guilty. Accordingly, the trial continued with the applicant then electing to give evidence.

Appeal against sentence

21.  In his initial Grounds of Appeal filed with his Notice of application for leave to appeal against sentence, the applicant claims that he was solely responsible for the financial well-being of his family.  He also refers to the fact that his elderly mother has suffered a stroke and that his wife suffered from Lupus.  Accordingly, he invites the Court to show mercy and allow him to return home soon in order to take care of them and to rehabilitate himself.

22.  The applicant also puts forward two other grounds of appeal, namely, that the documents, the subject matter of Charge 1, were all genuine; and that the judge had threatened him and declined to grant him sufficient time to arrange for a witness from Citibank Singapore to come to testify, thus denying him the opportunity of examining such a witness.  These two grounds were essentially the same as Grounds 1 and 2 in his application for leave to appeal against conviction out of time.

The respondent’s reply

Response to appeal against conviction

23.  Ms Chan Sze-yan, for the respondent, accepts that even where a defendant has pleaded guilty, the Court of Appeal can still entertain an appeal against conviction, but only within the principles stipulated in HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125, at 135, namely:

“25. An unequivocal guilty plea can be rendered a nullity if any one of the circumstances is applicable, according to the cited decisions:

(1) The facts admitted by the defendant do not amount to the offence with which he is charged;

(2) The admitted facts are equivocal as to guilt;

(3) The plea was tendered to a charge which was defective on its face or invalid or unclear;

(4) The plea was tendered involuntarily, e.g., induced by duress or misrepresentation or was not an exercise of free choice;

(5) The plea was induced by fraud or made under a fundamental mistake;

(6) The plea did not result from a deliberate and informed decision.”

24.  Ms Chan concedes that Grounds 2 and 3 of the applicant’s appeal against conviction could potentially come within criteria (4) and (6) above.  However, she says that no good reason has been supplied as to why this leave application should be permitted to be made out of time.

25.  In response to Ground 1, where the applicant seeks to adduce fresh evidence to prove that the documents were genuine, Ms Chan argues that such evidence is unlikely to be credible and, in any event, is not relevant to an issue in the appeal.  In particular, the new evidence documented at paragraph 15 above is not relevant in proving the authenticity of the documents, or that the applicant at that time believed them to be genuine. Some items, namely items (d) to (i) are not even related to the documents in issue.  In fact, the Singapore account has already been found to be non-existent and such fresh evidence relating to the Singapore account is unlikely, therefore, to be credible.

26.  In relation to Ground 2, Ms Chan has helpfully prepared a chronology of events for ease of reference as to the history of these proceedings.  On 18 July 2014, the day originally fixed for verdict, the applicant indicated that he wished to call a new witness.  The case was subsequently adjourned on that day, and on three further days, until 15 August 2014.  On 15 August 2014, the court was informed that no witness had come forward[6], and that the applicant wished to change his pleas to guilty[7].  The matter was then adjourned for a further 10 days until 25 August 2014, on which day the applicant pleaded guilty to the charges.  It is clear that, throughout this process, the judge never put pressure on the applicant to plead guilty, as is evidenced by the transcripts of proceedings for the hearing dates of 18 and 21 July 2014, and 4, 11, 15 and 25 August 2014.

27.  It is true that on 4 August 2014, the applicant’s new trial counsel did ask the court for the audio recording of the previous proceedings and requested eight weeks adjournment in order to locate a witness in Singapore[8].  As the case had been already been adjourned a number of times, and there was still no realistic prospect of the witness being called, it was entirely reasonable for the judge, in the proper management of the case, only to grant one week’s adjournment for the applicant to ascertain the availability of the witness.

28.  In response to Ground 3, Ms Chan submits that the allegations made by the applicant are simply not made out.

Response to appeal against sentence

29.  The respondent submits that unfortunate domestic circumstances or hardship do not amount to mitigation or any reason to interfere with an otherwise proper sentence: see HKSAR v Gurung Hemant (unrep., CACC 332/2005).

30.  Furthermore, a lesser discount is appropriate for a late plea, where, as here, court time and public money has been wasted.  Since a full trial on the basis of a not guilty plea had been conducted, and the applicant had only pleaded guilty when the judge was about to deliver his verdict, very minimal public resources had been saved and the 3 months’ discount given by the judge was not insufficient in the circumstances.  Ms Chan submits that the overall sentence was neither wrong in principle nor manifestly excessive, and leave to appeal against both conviction out of time and sentence should be refused.

Consideration

31.  I can see no basis for any suggestion that the applicant was pressurized into pleading guilty by anyone.  The affirmation of trial counsel provides no support whatsoever for such an allegation, nor do the transcripts of court proceedings before the judge give any countenance to the suggestion that the judge exerted pressure on the applicant.  Given the extraordinary turn of events, which pre-empted the judge from delivering his verdict, the judge responded with considerable patience in allowing the applicant time to procure his further evidence.  In my judgment, he would have been at fault if he had allowed the trial to be derailed for any significant length of time in order to wait for a witness who never materialised and, to this day, has provided no evidence of what he or she might say, if he or she ever existed.

32.  The applicant has failed to demonstrate that the plea which he entered on 25 August 2014, more than 5 weeks after the judge had indicated he would deliver his verdict in the trial, before unexpectedly adjourning proceedings to enable the applicant to call further evidence, was in any way equivocal so as to render his plea of guilty a nullity, within any of the criteria set out in Wong Chi Yuk, at 135 (at para 23 supra).  Accordingly, I can see no reasonably arguable grounds for appeal against conviction on either Ground 2 or 3 of the applicant’s grounds of appeal against conviction. 

33.  In respect of the application to call fresh evidence (Ground 1), no valid reason has been put forward by the applicant to explain why this evidence was not called at trial.  In any event, I do not consider it reasonably arguable that, even if there were a good reason for not adducing it at trial, it would have been likely to be credible.  The fact is that the evidence at trial established that the documents produced by the applicant to Citibank Hong Kong had not been issued by Citibank Singapore, and, further, that the Singapore account and the personnel named did not exist.  Moreover, the applicant admitted, when he pleaded guilty unequivocally, that he knew or believed the documents to be false, and that he presented them in order to deceive the bank into acting to its prejudice.

34.  Ms Chan seeks leave to adduce the evidence of Ms Chan Kim Yu, Emma in response to the documents which the applicant seeks to produce as fresh evidence.  Since I cannot see any reasonable argument or basis upon which to allow the applicant to produce his documents, I see no reason to allow the respondent to do likewise; although I recognise that Ms Chan’s evidence would be relevant to the determination of the application by the applicant, if a reasonable argument otherwise existed for the admissibility of his documents.

35.  No satisfactory reason has been given as to why this application for leave to appeal against conviction is being made out of time, when the applicant was prepared to file notice of his intention to apply for leave to appeal against sentence within the requisite time.  Furthermore, I can see no reasonable argument for granting leave to the applicant to adduce fresh evidence, nor do I consider that any of the applicant’s grounds of appeal are reasonably arguable so as to justify leave to appeal against conviction being granted out of time.  The application for leave to appeal against conviction out of time is therefore refused.

36.  In relation to sentence, there was the very obvious element of planning as well as the international dimension to the facts of the case, which justified, in the judge’s view, a notional sentence after trial of 4 years and 6 months’ imprisonment.  This was a very serious case of deception of a bank and I can see no reasonable argument that such a starting point was either manifestly excessive or wrong in principle.

37.  As for the late plea of guilty, it is difficult to disagree with Ms Chan’s submission that very minimal resources were saved by the applicant’s guilty plea.  Indeed, arguably, the applicant’s antics had wasted far more time, court resources and public expense than if he had been prepared to receive the court’s verdict on 18 July 2014.  No less than 5 further court days were required to dispose of the applicant’s case.  The applicant could not have complained if he had been given no credit at all for his late plea of guilty.

38.  In relation to Charge 2, the applicant was fortunate that he was only given a sentence of 2 months’ imprisonment consecutive to the 4 years and 3 months’ imprisonment passed on Charge 1.  Given that he had absconded for some 22 months, he would have had no cause for complaint if he had been given something in the region of 4 months’ imprisonment after plea for this offence: see, for example, HKSAR v Ko Chun Hung (unrep., CACC 71/2007), where the applicant had absconded from his trial in the District Court for just under 24 months.

39.  Humanitarian considerations arising from domestic hardship or unfortunate family circumstances do not, in the normal course, provide any reason for reducing an otherwise proper sentence.

Conclusion

40.  In all the circumstances, I can see no arguable grounds of appeal against sentence.  Consequently, the application for leave to appeal against sentence is also refused.  Indeed, as I have intimated, the applicant could not have complained if his sentence had been even longer.  For that reason, I should also make this clear to the applicant.  He has the right to renew either his application for leave to appeal against conviction out of time, or his application for leave to appeal against sentence, or both applications, to the Court of Appeal.  However, he should be warned of the consequences of so doing, which may include a direction by the Court of Appeal that, in computing the length of time to be served in custody, he should forfeit such period of time spent in custody pending his appeal as the Court may deem appropriate, if the Court of Appeal came to the view that there was no justification for the renewal of his application(s) for leave.

41.  I should also point out, so that the applicant clearly understands the position, that the Practice Note (Crime: Sentence: Loss of Time) [2013] 6 HKC 300 states, at para 10:

“The Court has become concerned at the frequency with which unmeritorious allegations of incompetence are made against counsel and solicitors. Such an allegation causes the practitioner whose reputation is thus impugned to expend considerable effort in the preparation of affidavits or affirmations and, often, in attending the hearing of the application. Although allegations of flagrant incompetence will always be examined carefully, the frequency of wholly unwarranted allegations has increased, both at the hands of represented and unrepresented applicants. An unwarranted assertion of incompetence will normally attract an order for loss of time.”

[1] Re-amended Summary of Facts, para 6

[2] The judge did not specify whether the 2 months’ imprisonment on Charge 2 was the starting point or the discounted sentence after plea

[3] the document was already submitted with the letters dated 10 and 11 June 2015

[4] the document was already submitted with the letters dated 10 and 11 June 2015

[5] This affirmation encapsulated the contents of an earlier undated letter (attached with a ‘court memo’ dated 10 June 2015) which was directed to be excluded from the Appeal Bundle since it was not filed in accordance with the proper procedures

[6] Appeal Bundle, p 37 C-E

[7] Appeal Bundle, p 37 F-G

[8] Appeal Bundle, pp 31E – 32V