HKSAR v. KONG KWONG POR

IN THE COURT OF APPEAL

1996, No. 657
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court):

1. On 12 November 1996 the applicant pleaded guilty to three offences of conspiracy to defraud in front of His Honour Judge Christie in the District Court and was sentenced to a total of 5 1/2 years imprisonment. He applies for leave to appeal against sentence.

2. The offences were part of a much larger money laundering process which originated on the Mainland. It was called a "currency exchange operation". There were clearly many others involved. The system of operation was that a bank account was opened in Hong Kong in the name of the victim. When it was opened a sum would be paid in by cheque. The bank passbooks which would record the payment in of the cheque were then falsified to make it look as though cash had been paid in. By this means, the agent of the victim in China was persuaded in Hong Kong that Hong Kong dollars had been paid into the account so that in turn the principal in China would pay over RMB.

3. It was by that relatively simple fraud that in the three offences charged some $11.9 million RMB were obtained. The applicant was not the main person involved in these matters but he played a key role. His task was to persuade the agent in Hong Kong that the money had been paid into the account. He did so on each occasion using a false name.

The plea and sentence

4. The applicant pleaded guilty although the judge said not on the earliest occasion but he was entitled to credit for his plea. The judge in sentencing said that for each of the conspiracies, he took as a starting point 2-3 years imprisonment. He then said that the defendant was entitled to a discount of one-third for his plea.

5. He calculated the sentences then as follows. He said on counts 1 and 2, there would be a sentence of 2 years imprisonment on each consecutive, and on count 4, 18 months imprisonment. He made those sentences consecutive and so the total was 5 years and 6 months.

The application

6. The applicant complains that the judge was biased against him because he and the co-accused - who fought the case and was convicted on charges 4 and 5 in the indictment - were represented by the same counsel. That this counsel put blame onto this applicant during the trial.

7. Secondly, he submits that he played only a minor role because he was always awaiting his boss's instruction and he was only acting under instructions in what he did. This may be described - compared with others - as a lesser part but, as we have already said, his role in Hong Kong was a vital one and a full one.

8. There is no indication in the judge's very brief reasons for sentence that excessive blame was put upon him or that he in any way misunderstood the applicant's part. Indeed, there was a detailed summary of facts from which the judge was working.

9. These were obviously very serious matters. It is not relevant to this appeal but because this was organised crime, the judge ordered the return of $2 million and in default a 15-month consecutive sentence.

10. We turn to the sentence passed. The judge, having said that he started for each offence at 2-3 years did not then at any stage specify his real starting point for all these offences, that is, what his starting point would have been after trial.

11. Clearly, if 3 years was the appropriate starting point for each offence, the total would have been 9 years which is above the judge's powers in the District Court. In fact, if he had considered this matter, he probably would not have started at 9 years. On the grounds of totality he would have come to something in the order of 8 years.

12. If 8 years is taken as the correct starting point, the sentence which was passed was not a sentence which was either manifestly excessive or wrong in principle. This Court has said on other occasions that where a judge in the District Court thinks the proper starting point is above his maximum powers, he may take that as a starting point and then make an appropriate deduction from that figure. It is only in circumstances where the offences are so serious that having made the deduction for plea and the sentence is still at or above 7 years that the judge must then make a further deduction. This is on the basis that an accused person must always have some credit for pleading guilty. So a deduction from 7 years in those circumstances will be appropriate.

13. So far as this sentence is concerned, as we have said, it was not wrong in principle nor was it manifestly excessive. The application is refused.