YEUNG KWOK LEUNG @ LEUNG KING MAN and Another v. R.

IN THE COURT OF APPEAL

1993, No.377
(Criminal)

HEADNOTE

Appeal against sentences by the 1st Applicant who was sentenced on three cheating and gambling charges to three years on each concurrent, and the 2nd Applicant who was sentenced on three cheating and gambling charges and one conspiracy charge to three years on each concurrent. Trial judge when sentencing said, referring to R. v. CHAN Tak-sang & others [1987] HKLR 1203 which set down a guideline of imprisonment for one year for a single offence of cheating and gambling "with all due respect to the Court of Appeal in CHAN Tak-sang, I am at a loss to understand why they affirmed a starting point of twelve months."

Held: The judge was clearly wrong to depart in such a radical way from the guidelines. The court observed that the guidelines may need to be revised but that until they were done, proper respect must be paid to them by sentencing judge.

IN THE COURT OF APPEAL

1993, No.377
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The 1st applicant YEUNG Kwok-leung alias LEUNG King-man was the 1st defendant at trial and the 2nd applicant HOR Hong was the 2nd defendant at trial. They were charged along with eight others with five offences which involved cheating at gambling using the classic Chinese confidence trick known as the "Tin Sin Kuk". The 1st defendant was not involved in the 2nd charge, which was a charge of conspiracy to cheat at gambling. After trial before Beeson D.J. the 1st defendant was found guilty on three charges of cheating at gambling and the 2nd defendant was found guilty of the same three charges and on the further charge of conspiracy to cheat at gambling. The 1st defendant was sentenced to three years on each charge to be served concurrently and was ordered to make payment of $50,000 as compensation to the victim. The 2nd defendant was sentenced to three years on each of the four charges on which she was found guilty and those sentences were also ordered to be served concurrently. They now appeal against those sentences.

2. The thrust of the appeal as argued by Mr. McGowan was that the trial judge had wrongly refused to follow the guidelines set down by this court for sentencing in cases of this nature. The trial judge said when sentencing:

"D1 was found guilty after trial of three counts of Cheating at Gambling and D2 was found guilty of the same three charges together with an additional count of conspiracy to Cheat at Gambling. All charges related to the form of swindle known as Tin Sin Kuk and it is apparent from the evidence that in this particular group, which comprised at least 8 others, the Tin Sin Kuk was being run as a business. For a comparatively minor financial outlay on premises and furniture; with the assistance of what might be termed scripts, as well as a certain amount of acting skill, various gullible targets were separated from what were in charges 1 and 4 amounts of cash in excess of $500,000.00 and in charge 5 from $150,000.00 of marked money, which after a short sojourn in a rice cooker, was returned to Treasury. The greater part of the sums obtained in charges 1 and 4 were never recovered.

Other Defendants were dealt with a lot earlier in 1991 and were sentenced as follows:

D3 - 12 months on each of 3 charges (concurrent)
D6 - 6 months - one offence
D7 - 7 months - one offence
D8- 8 months - one offence
D9 - 9 months - one offence

None of those Defendants disputed the matter at trial. In the case of D6 there was a very early plea on 19.10.90; D3, D7 and D9 pleaded on 4.2.91 (the original trial date) and D8 pleaded the next day on 5.2.91.

D6 assisted the Crown by giving information to ICAC and by being prepared to give evidence at the original trial. D3 and D7 had in addition to their pleas made restitution of $123,000.00 and $25,000.00 respectively."

3. The trial judge, as can be seen, acknowledged that the four other defendants, who had pleaded guilty to one count, received sentences which ranged from six to nine months, and that the other who pleaded guilty to three counts was sentenced to a totality of 12 months.

4. The facts revealed that these were well-organized offences involving large sums of money perpetrated over a number of months. Judge Beeson was satisfied that D1 was the "toi" or tablemaster and that D2's involvement ran parallel to that of D1 but she stated that she did not view D2 as the mastermind. She took the view, as she was entitled to, that these two applicants, because of the degree of their involvement and their pleas of not guilty, could properly be differentiated from the other defendants. She was further satisfied, and again it seems to us that she was entitled to be so satisfied, that the other defendants had been leniently dealt with. She refused to allow that leniency to work to the benefit of these two defendants.

5. The real complaint is that the trial judge failed to follow the guidelines set out by this court in R. v. CHAN Tak-sang and others [1987] HKLR p.1203. In that matter Cons V.-P. delivered the judgment of the court saying at 1207:

"We come ...... to the applications for leave to appeal against sentence. To begin with we would make some general observations. Firstly we respectfully agree with the comments of this Court in the Attorney General v. LEUNG Kam-to that for a single offence of this nature, a sentence of one year's imprisonment would normally be an appropriate starting point.

Secondly, as a general rule we would not expect there to be any significant variation in the sentences imposed on different offenders in any particular case by reason of the different roles that each had played in the course of that particular swindle. From the very nature of this kind of fraud the parties are dependent upon the conduct of each other, each party needing to succeed in his own part before the whole can succeed.

Thirdly, although the amount of money involved is a matter to be taken into consideration, it does not play a decisive part, for the amount taken will usually depend more upon the character and circumstances of the victims than upon the intent of the culprits."

6. It is true that guidelines are not strait jackets. They are nonetheless guidelines. Judge Beeson has this to say with regard to CHAN Tak-sang:

"With all due respect to the Court of Appeal in Chan Tak-sang I am at a loss to understand why they affirmed a starting point of 12 months. The maximum penalty for an offence against s.16 of the Gambling Ordinance is 10 years. On reading cases and references to the Tin Sin Kuk there appears to be an attitude that because Tin Sin Kuk is a traditional swindle hallowed by years of Chinese history and that because the victims are themselves gullible or greedy or both that somehow sentences should be minimal.

Such a view cannot be correct. Laws are often promulgated to protect the weaker, more gullible and even greedier members of a community. I can see little difference between a Tin Sin Kuk and a fraud based on, say, pyramid selling or forged share certificates. In the latter offences account would be taken on sentencing of the amounts obtained and the degree of organisation and sophistication involved in the fraud."

She went on later then to say:

"I take the view, knowingly departing from the guidelines, which I do not consider to be a strait jacket, that for these offences the proper starting point should be three years."

In knowingly departing from the guidelines in such a radical way the judge was clearly wrong. She was not entitled so to do. If circumstances have changed since those guidelines were promulgated it is for the Attorney to ask this court that the guidelines be re-considered. Indeed it appears that circumstances may have changed as the expert who was called to give evidence indicated that the astonishingly high number of 50,000 people were involved in Tin Sin Kuk swindles in the year of 1992. We, in this case, will do no more than comment that the Attorney should at the earliest opportunity ask this court to look again at the guidelines. Until that is done they must be given proper heed by the judges for whose guidance they are propounded.

7. As regards these two defendants they were entitled to be sentenced in accordance with the existing guidelines. Had they been so sentenced would it have been to their advantage? Those guidelines indicated that a single offence merited a sentence of one year or, put more correctly, that one year would be the appropriate starting point for such an offence. As the applicant did not plead guilty, the starting point could not be reduced upon that basis. They had only minor records and that has been one of the matters relied upon by Mr. McGowan.

8. He suggested that the judge was wrong when she made the following observations.

"Apart from these matters, which are not in themselves worthy of any discount, I note that neither defendant through their representative or otherwise expressed any remorse for these offences; they did not assist the investigators, no pleas were offered and the trial originally fixed for ten days lengthened to 18 as the Crown was put to straight proof of its case. The only point in mitigation relative to the offences was that the 3rd defendant had taken a leading role - which submissions, for reasons given below, I do not accept."

It is suggested that the trial judge demonstrated in the above passage that she was punishing the defendants because they had refused to plead guilty which occasioned a trial of 18 days. Whatever the judge may have meant by those observations, and they were unfortunate, they are not in the outcome of significance as we are satisfied that the sentences of three years which she imposed must be quashed because of her refusal to apply the applicable guidelines. When coming to our own conclusion as to sentence we bear in mind not only the quantum indicated in the guidelines but also the statement that no significant variation in sentence should occur as between various offenders who were involved in the swindle.

9. The trial judge correctly observed when giving her judgment that sentences for separate offences should be consecutive. This observation, although a proper one, was not followed by her but will guide us when assessing the sentences. Upon the facts we are satisfied as to the 1 st defendant that it would be proper to impose a sentence of one year on each count and to order that those sentences be served consecutively. We therefore arrive by different route at the same totality of sentence as that imposed by the trial judge.

10. As to the 2nd defendant we consider that there should be some variation made between the sentence imposed on her and those imposed upon the 1st defendant. We bear in mind the indication in the guideline case that there should not be a significant variation but are satisfied that in each of the three cheating cases the proper sentence is one of imprisonment for nine months. As to the conspiracy offence, conscious that we may be being unduly lenient, we impose a similar sentence in relation thereto. She will be therefore sentenced to nine months on each of the four charges on which she was convicted making a totality of three years which again is the same totality as that arrived at by the trial judge.

11. The application of the 1st defendant is allowed. The hearing of the application is treated as the hearing of the appeal. The sentences are varied to one year on each charge and it is ordered that they be consecutive.

12. The application of the 2nd defendant is allowed. The hearing of the application is treated as the hearing of the appeal. The sentences on each charge are varied to ones of nine months and those sentences are also ordered to be consecutive. The totality is one of three years. We are quite satisfied that this totality in each case is in no way unduly severe and that no adjustment is called for in that regard.