HKSAR v. CHEUNG CURTIS KA KIM

CACC 141/2017
[2018] HKCA 40

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 141 OF 2017

(ON APPEAL FROM HCCC NO 296 OF 2014)

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REASONS FOR JUDGMENT

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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.  The applicant pleaded guilty on 7 April 2017 before Deputy Judge Stuart-Moore in the High Court to 13 counts of theft, contrary to Section 9 of the Theft Ordinance, Cap 210, and 3 counts of procuring the making of an entry in certain records by deception, contrary to Section 18D of the same Ordinance[1]. By these charges, the applicant admitted defrauding six victims, who were all serving Cathay Pacific pilots, by means of an investment scam between December 1997 and August 1998. A total amount of more than US$3.2 million was defrauded from the six victims, which corresponded to more than HK$25 million at the time.

2.  The applicant applies for leave to appeal against the total sentence of 8½ years’ imprisonment imposed on him on 4 May 2017.

Summary of facts

3.  The applicant persuaded the six victims to put funds into a bogus investment scheme known as the Kwong Fai 88 Investment Program (“the program”) purportedly managed by Kwong Fai Limited (“Kwong Fai”), a company registered in the Bahamas.  Kwong Fai was beneficially owned and controlled by the applicant.

4.  In April 1997, the applicant met PW1, another Cathay Pacific pilot, on a flight from Canada to Hong Kong.  The applicant described himself to PW1 as an “international private money manager”, who had developed a sophisticated futures trading program.  He claimed to have approximately US$100 million under his management, consisting of large private accounts as well his own personal funds and those of his family and close friends.  He stated that an opening investment of US$3 million was required to join the program.

5.  PW1 was persuaded to invest in the program; however, upon subsequent demand, PW1 received repayments of the sums he had parted with for the purported investment together with a sizeable profit.  The six pilots (“PW2-7”) were subsequently introduced to the applicant, some through PW1.  The applicant variously claimed to PW2-7 that he was an “experienced investment manager” and that under the program, funds would be invested in United States Treasury Bills and the high yield global futures market.  He further promised that investors could withdraw their funds in part or in full within a few months of participating in the program.

6.  Accordingly, PW2-7 each entered into a written “investment trust agreement” with Kwong Fai and remitted funds to its bank account.  The total amount remitted by PW2-7 was US$3,252,073.18, as particularised below:

Count	Nature of Offence	Victim	Date	Amount (US$)	Total loss of PW (US$)
1	Theft	PW2	19/12/1997	55,000.00	1,402,073.18
2			24/12/1997	11,923.18
3			02/03/1998	500,000.00
4			15/04/1998	100,000.00
5			08/05/1998	400,000.00
6			02/06/1998	120,150.00
7			11/07/1998	200,000.00
8			15/08/1998	15,000.00
10	Theft	PW3	19/02/1998	100,000.00	100,000.00
12	Theft	PW4	16/04/1998	50,000.00	50,000.00
13	Theft	PW5	23/04/1998	50,000.00	100,000.00
14			13/10/1998	50,000.00
17	Procuring entry in certain records by deception	PW6	02/07/1998	600,000.00	1,500,000.00
19			02/07/1998	400,000.00
21			21/08/1998	500,000.00
23	Theft	PW7	11/08/1998	100,000.00	100,000.00
			Total Amount		3,252,073.18

7.  The applicant occasionally provided PW2-7 with what he claimed were trading records (but not formal statements), and assured them that their investment was doing well.

8.  In the latter half of 1998, PW2-7 became concerned about the genuineness of the program and asked for the return of their funds; but to no avail.  The applicant left Hong Kong through Macau on 10 November 1998.  The matter was reported to the police in January 1999.

9.  The applicant did not return to Hong Kong until he was extradited on 8 February 2014, having been detained in the United States following his arrest in Chicago by a United States marshal on 9 March 2012. Between December 2012 and February 2014, the applicant filed before the courts of the United States a petition for habeas corpus, an appeal from the denial of habeas corpus, as well as two motions to stay proceedings. All of the applications were refused.

10.  The applicant never made any of the alleged investments: indeed, he admitted as much to PW1 in January 1999.  A fund flow analysis shows that a total of just under US$3.64 million (equivalent to some HK$28 million) was transferred from Kwong Fai’s bank account to the applicant’s personal bank account between 23 December 1997 and 4 November 1998 by way of 31 transactions. The funds were dissipated thereafter by the making of transfers to the applicant’s personal account with another bank, cash withdrawals, investments in securities companies and payments to various unrelated third parties.

11.  Except for a sum of US$10,000 transferred to PW2’s account on 4 September 1998, none of the stolen funds were ever returned to any of the six victims.

Mitigation

12.  Mr Whitehouse, with him Ms Moy, who appeared for the applicant during mitigation as they both do before us at this appeal, submitted to the judge that the offences did not involve a ‘breach of trust’. He emphasised that the applicant was elderly (just under 70 years of age at the time of sentence) and in poor health; further, there had been a significant delay between the reporting of the offence and the applicant’s arrest.

13.  He also submitted that the sentence should be reduced to reflect the time spent by the applicant in custody both in the United States and in Hong Kong.

Reasons for sentence

14.  The judge noted the applicant’s age and accepted that the offences were “not strictly a case of breach of trust.”  He found:

“The defendant was in no special professional category such as a solicitor or a banker or an accountant… The defendant, to put it bluntly, was a bare-faced conman, or a confidence trickster.”

The judge considered the applicant’s pre-meditation, how he kept in close contact with the victims to facilitate the deception, and how, as a result, he would have been only too well aware of the likely impact on them. Two of the victims had suffered greatly, one (PW2) losing his life savings of more than US$1.4 million, the breakdown of his health and ultimately his marriage.  In short, as the judge put it, being defrauded “had totally ruined his life”.  The other (PW6) had lost US$1.5 million, which was effectively his retirement pension.  The stress of losing the money and trying to track down the applicant had led to heart problems for which he was on regular heart medication.  The victim stated in his statement, “My whole life was ruined by this man”.

15.  The judge pointed out that, for sentencing purposes, the amount involved was over HK$25 million, far exceeding the upper tariff band of the R v Barrick[2]guidelines; and surpassing the HK$15 million mark of the guidelines in HKSAR v Ng Kwok Wing[3] by some HK$10 million.  The judge was satisfied that the starting point should be “not less than 13 years’ imprisonment”, from which he allowed the applicant a full one-third discount for his pleas of guilty.

16.  The starting points and ultimate sentences in respect of each count may be summarised in the following table:

Count	Nature of Offence	Victim	Amount (US$)	Starting Pt	Sentence
				years (yr) and months (m)
1	Theft	PW2	55,000.00	2 yr 3 m	1 yr 6 m
2			11,923.18	6 m	4 m
3			500,000.00	5 yr 6 m	3 yr 8 m
4			100,000.00	2 yr 6 m	1 yr 8 m
5			400,000.00	5 yr	3 yr 4 m
6			120,150.00	2 yr 9 m	1 yr 10 m
7			200,000.00	3 yr 9 m	2 yr 6 m
8			15,000.00	9 m	6 m
10	Theft	PW3	100,000.00	2 yr 6 m	1 yr 8 m
12	Theft	PW4	50,000.00	9 m	6 m
13	Theft	PW5	50,000.00	9 m	6 m
14			50,000.00	9 m	6 m
17	Procuring entry in certain records by deception	PW6	600,000.00	5 yr 9 m	3 yr 10 m
19			400,000.00	5 yr	3 yr 4 m
21			500,000.00	5 yr 6 m	3 yr 8 m
23	Theft	PW7	100,000.00	2 yr 6 m	1 yr 8 m
		Total	3,252,073.18	13 years	8½ years[4]

17.  Having referred to various authorities relevant to the issue of how custody in a foreign jurisdiction might be taken into account, the judge found that the applicant had “played the system in the hope that he might be able to evade justice in Hong Kong”.  Accordingly, he was only prepared to allow a reduction of 2 months’ imprisonment for the period of 23 months spent in custody in the United States contesting his extradition.  He noted that the 3-year period in custody pending sentence in Hong Kong would be taken into account in the normal way in computing his eventual date of release.

18.  To achieve this reduction, the judge indicated that ordinarily he would have ordered 2 years of the sentence on Count 17 to run consecutively to the other sentences.  However, to reflect the fact that he was allowing the applicant 2 months’ further reduction for the time he had spent in custody in the United States, he reduced the sentence on this count to 1 year and 10 months’ imprisonment.  In effect, therefore, the judge adopted an overall starting point of 13 years’ (or 156 months’) imprisonment, which was reduced to 8 years and 6 months’ (or 102 months’) imprisonment rather than 8 years and 8 months’ (or 104 months’) imprisonment.

Grounds of appeal

19.  It is argued by Mr Whitehouse that a starting point of “no less than 13 years” was manifestly excessive in all the circumstances of the case.  Complaint is made that the judge failed to consider, or ignored or rejected the following factors in the applicant’s favour:

(a) the applicant’s advanced age;

(b) the delay in issuing the applicant’s arrest warrant;

(c) the overall delay of 19 years in bringing the applicant before the court;

(d) the time spent by the applicant in custody overseas.

20.  It is further averred that the judge attached too much weight to the Victim Impact Statements of the victims concerned, which contents were unsworn and untested in cross-examination.

21.  The applicant also takes issue with the judge’s apparent reliance on the sentences passed at first instance in HKSAR v Annells Deborah[5], which case was said to be very different to the instant case.  There, the defendant had committed 47 offences involving a rather larger sum (HK$31.3 million); the offences amounted to a ‘breach of trust’; and she had committed some offences whilst on bail.  An overall starting point of 13½ years’ imprisonment was adopted by the sentencing judge, resulting in a sentence after plea of 9 years’ imprisonment.  We were informed by Mr Sean that the appeal by the defendant against her sentence has since been abandoned and formally dismissed.

Respondent’s submissions

22.  Mr Sean, on behalf of the respondent, highlights the following circumstances, which he argues are so serious that they render any distinction with a ‘breach of trust’ case meaningless:

(a) The whole investment was an outright premeditated scam;

(b) No less than six victims were involved over the course of some 8 months;

(c) The applicant quickly dissipated the money after it had been deposited and has been unwilling ever since to explain where the money went;

(d) The applicant well knew that he was dealing with at least two of the victims’ life savings and that the impact on them would therefore be devastating;

(e) The applicant made use of an innocent person (PW1) to gain the trust of the victims;

(f) The applicant repeatedly told lies to his victims in order to stall for time before disappearing for some 14 years.

23.  As to applicant’s submissions in respect of the sentence in Annells, Mr Sean submitted that, although the case had been mentioned during an exchange with the court during mitigation, it had not featured in the judge’s comprehensive review of relevant authorities when he came to sentence.  In any event, HK$25 million in 1998 could hardly be said to be less than HK$31 million in 2016, which was when the defendant in Annells had been sentenced.  The victims in both cases were exploited and the fact that there was said to be no ‘breach of trust’ element in its classic sense in the present case did not make a lucrative investment scam by an outright conman any less serious.

24.  As for the suggested mitigating factors advanced, Mr Sean pointed out that:

(a) the applicant was in his 50’s when he committed the offences and fled to the United States;

(b) any delay was caused because the applicant chose to hide from his crimes and his victims and then challenge his extradition;

(c) it took several years to obtain the bank records and company documents of the applicant’s company in the Bahamas;

(d) as for the applicant’s time spent in custody in the United States, it was in the court’s discretion as to whether such period, and if so how much, should be taken into account in computing his eventual sentence.  It was plainly in the public interest to encourage fugitives to return voluntarily rather than to resist extradition proceedings; and

(e) as for the Victim Impact Statements, the applicant expressly chose not to challenge these statements.

Discussion

25.  This case is an egregious example of selfishness and greed, in which the applicant has shown not one ounce of remorse, has fought against the inevitable consequences of his crimes for as long as he can and has made no attempt whatsoever to recover any money or repay a single cent to his victims, who have been made to wait years for some hope of justice being done, and who have lost everything that they entrusted to him; two of them in catastrophic circumstances.  These are not the sort of circumstances which elicit the slightest sympathy from this Court.

26.  Emphasis is placed by Mr Whitehouse on the judge’s acceptance that this was not a ‘breach of trust’ case.  With respect to the judge, we do not agree.  The victims were men who placed substantial sums of money (in two cases effectively their life savings) in the hands of someone they believed to be an experienced financial manager and investor and whom they trusted would handle their money in a particular way.  To that end, each of the victims was required by the applicant to enter into a written “investment trust agreement” with Kwong Fai, under which the applicant would undertake to invest their funds in the program.  The applicant had no intention of ever doing as he was entrusted to do, invested nothing on their behalf in the so-called program and decamped with the collective proceeds of more than HK$25 million for the next 14 years.  Almost two decades later, he has still not paid a single cent back to the victims.

27.  Although we respectfully disagree with the judge that this was not a ‘breach of trust’ case, such a label is neither here nor there in the present context.  It may be that the judge meant that the applicant was not a bona fide professional, notwithstanding that his victims clearly thought otherwise, and was not in fact acting in a recognised position of trust, whatever they may have believed.  The same judge had made a similar point, in an appellate capacity, in HKSAR v Au Wing Kun[6]:

“In our opinion this was not strictly a ‘breach of trust’ case. The applicant was not acting in any professional capacity as an investment agent for the victims as, for example, a banker or recognised broker would have been if performing the same task. The applicant had befriended his victims and was, in reality, no more than a conman practised in the art of deceit. Having said this, we do not regard this as a distinction of any real significance in the present circumstances.”

28.  A similar sentiment concerning the utility of any distinction was made by another division of this Court in R v Wong Wan Keung[7], which involved an informal investment arrangement between two men, one of whom (the applicant) was a Government Land Officer, while the other (the victim) was a taxi driver who regularly drove the applicant to work.  The Court said[8]:

“The judge described this as a mean offence and it certainly was. It deprived the victim of a substantial amount of money which he felt sure the victim could ill afford. Counsel for the applicant contended that the offences involved no breach of trust. This may be so. But it was such out-and-out dishonesty that no distinction can be usefully drawn.”

29.  By contrast, we consider that the applicant in the case before us was acting in a position of trust in relation to the victims and their money, unlike the more informal arrangements of financial adviser to four friends described in Au Wing Kun, and the proposer of the property investment to a taxi-driver acquaintance in Wong Wan Keung.  Nevertheless, we agree with Mr Sean that whether one ascribes the particular label ‘breach of trust’ to the applicant’s conduct or not makes no appreciable difference in the circumstances of this particular case.  For this was a calculated and carefully executed scam designed to fleece six educated men, who trusted the applicant to be an experienced investment manager, of millions of dollars, which at least two of them could ill afford to lose.  He was, as the judge rightly characterised, a “bare-faced conman, or a confidence trickster”. Clearly, the victims believed that he was who he said he was, that he had the financial credentials and acumen to invest their money on their behalf and that he would deal with their funds as directed and promised.  Unfortunately for them, it was all a sham.  It would be rather absurd if the applicant found himself in a better position because he was not in fact what he claimed, and who he was believed, to be.

30.  Emphasis has also been placed on the applicant’s age and health.  However, it took the best part of two decades to bring the applicant to account for his crimes, more than 5 years of which were required to bring him to the point of pleading guilty following his arrest in the United States.  During that latter period, he fought the extradition proceedings in the United States for almost 2 years and could not bring himself to plead guilty in the High Court until more than 3 years after his return to Hong Kong. It cannot profit a defendant who has run away from his crimes for years on end, and then strenuously resisted being called to account for them, to complain that there has been delay in bringing him to justice; or that he has grown old in the process.  Moreover, we see nothing in the medical reports on the applicant suggesting anything more than the normal degenerative changes to be expected of a man of his age.

31.  Mr Whitehouse further submits that the applicant did not leave Hong Kong as a fugitive, yet had to wait years before an arrest warrant was issued and he was returned to Hong Kong.  Therefore, there has been inordinate delay in processing his prosecution, when the victims must have known where the applicant was, long before his arrest.  With respect, this argument is wholly devoid of realism and common sense.

32.  Firstly, it was accepted by the applicant that in January 1999, two months after leaving Hong Kong through Macau, he had admitted to PW1 that “he had not in fact invested the victims’ money as he had represented and there was no trading account with Prudential Bach Securities in New York or anywhere else for the program”.  Instead, he told PW1 that the victims’ money “had been used to finance investments in mainland China but he refused to elaborate further”[9]. This is not a case, therefore, where someone has left Hong Kong and taken up residence in another country blissfully unaware or, even on a generous assessment, unsure that he has done anything wrong in the country which he has left, or perhaps believing that he has been wrongly or unfairly accused: indeed, after his departure he had spoken to some of the victims and spun a web of excuses as to why he could not return their funds[10].  The applicant clearly left Hong Kong, having stolen the equivalent of HK$25 million and fully aware that his victims would never see their money again.

33.  Secondly, the applicant then sought to remain in the United States, knowing that he had stolen a large sum of money from his victims in Hong Kong.  A chronology was incorporated in the Summary of Facts[11] admitted by the applicant, showing that between 2000 and 2011, “investigations were conducted locally and overseas and formal evidence … obtained from overseas (the Bahamas, USA, UK and Luxembourg) via Mutual Legal Aid Assistance (“MLA”) and Letter(s) of request”.  However, it was not until May 2011 that “enquiries revealed the [applicant] was in the USA”.  Notwithstanding the admission of this chronology, Mr Whitehouse has sought to suggest that the victims’ own enquiry agents had discovered the applicant’s whereabouts much earlier.  Even if that were true (although it is not accepted by the respondent), and the victims did not inform the police in Hong Kong that they had located the applicant, they were no doubt more concerned to get their money back if they could.  It in no way inures to the applicant’s benefit that, following his “discovery” by the victims, he still remained where he was, did not return to Hong Kong, and steadfastly refused to pay anything back, knowing that he had stolen their money.

34.  Thirdly, the challenges the applicant mounted to his extradition in the United States were made in the full realisation that he had committed a number of serious crimes in Hong Kong, for which he knew he should be called to account.  By filing a petition for habeas corpus, an appeal against the denial of habeas corpus and two motions to stay the extradition process, he was obviously trying desperately to avoid having to return to Hong Kong to face prosecution for crimes he knew he had committed. It was in that context that the judge rightly said the applicant was clearly “playing the system”[12].

35.  Finally, never once in the 19 years since his crimes were committed has the applicant made any attempt to explain where the money has gone or to pay anything back.  We can detect no urgency whatsoever on his part during that time: instead, he has been content to hold out as long as he can.  We do not accept that the applicant is entitled to any consideration for the time it has taken to bring him to justice, for which supposed “delay” he is himself responsible.

36.  Complaint is then made that the judge should nevertheless have reduced the overall sentence he considered appropriate by 23 months for the whole period the applicant had been in custody pending extradition in the United States; alternatively, the judge ought to have given a greater reduction than the rather “miserly” credit of 2 months the applicant in fact received.

37.  The difficulty with this submission is that the question of reduction for a period in custody in a foreign jurisdiction is ultimately a matter of judicial discretion, taking into account various different considerations.  In this case, the judge conducted a thorough analysis of relevant authorities both in the United Kingdom and Hong Kong and the factors relevant to the exercise of his discretion.  One authority he found particularly useful and “very close to the present case”, was the decision of this Court in HKSAR v Michael Wang[13]. Given certain similarities with the present appeal, as well as the Court’s useful discussion of the authorities in this particular area of sentencing, we consider we should recite the relevant parts of the judgment[14]:

“38. A sentencing judge has the discretion to decide if, and how much of the period of detention, after a fugitive defendant has fought extradition, should be taken into account when calculating sentence (see A G v Shamsudin [1987] HKLR 826, Secretary for Justice v Sugiyana, Akira AR 4/1996).

39. Stuart-Moore J (as he then was) observed in R v Law Yui-wo [1994] 2 HKCLR 204 that any such detention ought only to be considered when “it is felt that justice demands that account should be taken of the time spent in custody outside the jurisdiction and that credit should be given for it”.

40. Extradition proceedings are time-consuming and extremely costly. The resulting delay can lead to a miscarriage of justice. It is therefore, generally, in the public interest to encourage fugitives to return voluntarily and discourage fugitives to resist extradition proceedings. We note, however, the following comment of Stock JA in HKSAR v Lam Tse Leung (unreported CACC 476 of 2004) at page 23:

“Extradition proceedings cost money and cause delay and – even though experience suggests that failure is rare – may be unsuccessful. This is a factor which sentencing courts should recognise; and a decision not to contest extradition proceedings abroad may well, depending on the facts of the case, warrant some credit. But, we repeat, whether credit is due and, in particular, the extent of that credit, will be dictated by the facts which are highly case-sensitive. It must be remembered that those who decide to contest extradition proceedings will often be advised of the cost of so doing; will be aware in many a case that the proceedings are often lengthy; ……”

41. Clearly, the applicant, in a desperate attempt to avoid returning to Hong Kong to face the charges, chose to challenge the extradition proceedings and put up arguments that were ultimately ruled to be unarguable.

42. On the information supplied by Mr Goodman, counsel for the respondent, the applicant fought every inch of the way in the extradition proceedings, with repeated applications/appeals.

43. The applicant never consented (to) being extradited back to Hong Kong. The fight was only finally given up when there was clearly no hope of success. Even then, the applicant waited until the expiration of the period of stay of the orders certifying extradition between August and December 2005 before he agreed to return to Hong Kong. The attitude adopted by the applicant must be discouraged.

44. In our view, the judge was entitled to conclude as he did that the delay “is something of a folly of his own and that he was actually the author of his own misfortune”. The judge was entitled to refuse, in the exercise of his discretion, to give any credit for the time that the applicant was in USA custody pending extradition.

45. Indeed, in our view, the judge was generous in deducting a period of four months as “an act of mercy” when the applicant could have “thrown in the towel” earlier by agreeing to return to Hong Kong after his appeal was dismissed by the Ninth Circuit court of appeal in August 2005 instead of waiting until the period of staying the order of certification expired in December 2005.

46. This period of four months might well be regarded as having cancelled out the three-month delay caused by the “prosecutor’s honeymoon”, a factor heavily relied on by Ms Draycott.

47. Power JA in R v Liu Kwok Kwong, Wallace (unreported, CACC 205 of 1991) said the following:

“This was a matter for the exercise of the discretion of the trial judge. This exercise will only be upset if it be shown that she was plainly wrong or that she plainly failed to take into account matters which she should have had in her mind when exercising her discretion. This, in our view, has not been shown”.

48. On the materials before the judge, the decision to only deduct four months of the 32 months’ period whilst the applicant was fighting the extradition from his sentence cannot be faulted.”

38.  We respectfully agree with the Court’s decision and endorse its sentiments.  It is clear that the judge in the present case properly and carefully addressed all relevant principles and determined, for the reasons he explained, that the applicant, having decided to “play the system” to avoid having to return to Hong Kong to account for his crimes, was only entitled to a consideration of 2 months’ reduction for the time spent resisting extradition in the United States.  We can see no reason to impugn the exercise of the judge’s discretion in this regard: indeed, any greater reduction would in the circumstances have been generous.

39.  Mr Whitehouse also sought to argue that the applicant was only exercising his legal rights in challenging the extradition proceedings in the United States.  However, as the Court in Michael Wang made clear, it is in the public interest to encourage fugitives to return voluntarily and to discourage them from resisting extradition proceedings, which are both costly and time-consuming.  Here, the applicant knew perfectly well what he had done, as he ultimately acknowledged when he pleaded guilty to the offences.  Yet, he resisted attempts to extradite him for almost 2 years.  Other defendants should be discouraged from adopting a similar course.

40.  Finally, it is suggested that the judge paid too much heed to the Victim Impact Statements, which were unsworn and untested in cross-examination.  However, it became clear in the course of argument before us that Mr Whitehouse took no issue with the essential facts referred to by the judge in his sentencing remarks, in particular that PW2 and PW6, who had injected most into this scam, had lost their life savings and pension respectively as a result of the applicant’s depredations.  Had he wished to challenge those or any other facts at the sentencing hearing, Mr Whitehouse could of course have done so.  Instead, he expressly told the judge that he did not seek a Newton enquiry in respect of the victims’ statements.  In our judgment, there is nothing in this point.

41.  The ultimate question for this Court is whether the starting point of 13 years’ imprisonment and the resulting discount following a guilty plea, plus a further discount of 2 months’ imprisonment for time spent in custody in the United States, leading to an overall sentence of 8½ years’ imprisonment, was manifestly excessive or wrong in principle for the criminality concerned.

42.  As we said at the outset, this was an egregious example of selfishness and greed.  It does not need much imagination to realise that at least two lives have been ruined by the applicant’s exploits.  We are now told that the applicant is remorseful.  However, we see no evidence of that whatsoever.  Almost two decades have passed since the applicant executed his despicable scam relieving six unfortunate victims of the equivalent of HK$25 million, which would be significantly more in real terms today.  Not a single cent has been repaid, nor has the applicant ever condescended to explain where the money is or what happened to it.  Knowing full well what he had done, the applicant disappeared for many years, resisted extradition and finally after three years in Hong Kong pending trial accepted his guilt.

Conclusion

43.  In our judgment, the sentence was not a day too long.  This application is accordingly refused and the appeal dismissed.