HKSAR v. SHUM YAN SHING ALBERT

CAC C 247/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 247 OF 2012

(ON APPEAL FROM DCCC NO. 39 OF 2012)

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BETWEEN

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

1.  On 15 June 2012, the applicant, Shum Yan Shing, Albert, was convicted after trial in the District Court before District Judge Douglas Yau on three charges.

2.  Charges 1 and 2 alleged that between October 2009 and 20 May 2010, he had conspired with Hau Chi Wing (“Hau”) to defraud two finance companies and their employees by making false representations in relation to the purchase of two motor vehicles, so as to obtain loans of HK$654,034 and HK$700,000 from the respective finance companies.  Charge 3 alleged that in the period between 22 February and 6 March 2010, he had conspired with Hau to pervert the course of public justice by making false representations to the police as to the identity of the person driving a motor vehicle which was the subject of police enquiries into an offence of speeding.

3.  On 18 June 2012, the applicant was sentenced to 3 years’ imprisonment on each of Charges 1 and 2, the sentences to be served concurrently.  He was sentenced to 2 years’ imprisonment on Charge 3, six months to be served consecutively to the sentences on Charges 1 and 2, and the balance to be served concurrently therewith.  The overall sentence was, therefore, one of 3½ years’ imprisonment.  By this application, he sought leave to appeal against both conviction and sentence on all three charges.

4.  At the end of the hearing, we dismissed the application for leave to appeal against conviction.  As for the application for leave to appeal against sentence, we allowed the application insofar as it related to Charge 3, and treating the hearing as the hearing of the appeal, allowed the appeal to the extent of reducing the sentence imposed in respect of Charge 3 to one of 21 months’ imprisonment.  The concurrent sentences in relation to Charges 1 and 2 (on which we comment below) were left undisturbed. However, we were of the view that there was no basis for reducing below six months the part of that sentence to be served consecutively to the concurrent terms of three years under Charges 1 and 2.  In the result, therefore, the total length of imprisonment of 3½ years remained unchanged.

5.  Additionally, for the reasons explained in paragraph 14 below, we gave a direction under section 83W(1) of the Criminal Procedure Ordinance, Cap. 221 (“the Ordinance”) that two months of the time that the applicant was in custody pending the determination of his appeal should not be reckoned as part of the term of the sentence to which he was subject.

6.  The facts can be summarised as follows:-

(1) The applicant came to know Hau in about September 2008.  At that time he was aged 30, while Hau was aged 18 and was working as a receptionist at a firm of solicitors.  He having befriended her, they began dating and developed an intimate relationship.

(2) In May 2009, the applicant told Hau that he was in hospital in Shanghai as a result of an accident, needed money to pay the hospital bills and asked her to raise money to help him.  Hau did as she was asked and borrowed money which she passed to the applicant, but the applicant kept asking for more.

(3) When Hau had exhausted her sources of credit, the applicant told her that she could raise more money by obtaining loans to purchase cars, by using the personal information of a client of the law firm by which she was employed and falsely representing that the client was her relative who wished to purchase the cars in question.  He told Hau that the cars could quickly be sold for a profit and that it would only be necessary to repay a few instalments of the loans.

(4) Hau did as she was asked, and was able to buy one Porsche and one BMW motor car using a client’s information which she improperly obtained.  In the process of buying the vehicles, Hau falsified documents and forged the client’s signature on a number of documents.

(5) Contrary to what the applicant told Hau, the cars were not sold soon afterwards, causing Hau to have to borrow yet more money to service the loans that had been obtained for the purchases.

(6) These matters were the subject of Charges 1 and 2.  Charge 3 involved the applicant and Hau agreeing to mislead the police as to the identity of the driver of one of the vehicles, which had been involved in a speeding incident.  To do this, Hau had passed off an acquaintance of hers as the driver, without the consent of the acquaintance (who had in fact refused to take part in the scheme).

(7) Thereafter, in March 2010, Hau saw the applicant driving one of the vehicles.  She then challenged the applicant about this, but he denied having possession of the cars, and said that he had no idea what she was talking about.

(8) As a result, Hau realised that she had been duped by the applicant, and surrendered to the police, admitted her involvement in the matters described above, and provided information about the role of the applicant.  She gave evidence for the prosecution at the trial of the applicant, and in separate proceedings pleaded guilty to similar charges, for which she was sentenced to a total of 19 months’ imprisonment.  Despite an appeal (CACC 270/2012, Yuen JA and Line J, 11 January 2013) her overall sentence was not altered, although changes were made to its component parts.

7.  The applicant, who was not represented, failed to lodge any grounds of appeal, or written submissions, whether before or at the hearing.

8.  In his oral submissions in support of his application for leave to appeal against his convictions, he asserted that Hau, on whose evidence he was convicted, should not have been believed by the District Judge, because there were many discrepancies in her evidence, which was in certain respects self-contradictory.  He said that Hau was not a reliable witness, and that there were occasions in the course of her testimony when she had been assisted by the District Judge.  He claimed that she had falsely implicated him in her wrongdoing, and that she had done so and given evidence against him solely for the purpose of obtaining a lighter sentence for herself.  He said also that there was no evidence to implicate him in the offences with which he was charged other than her testimony – in particular, there were no documents signed by him.

9.  As for his application for leave to appeal in relation to sentence, he said that the sentence of 2 years’ imprisonment on Charge 3 was too heavy, particularly in the light of the decision of this Court in Hau’s appeal, where a starting point of 1 year was adopted.  He submitted further that the overall term of imprisonment of 3½ years was, in all the circumstances, too high.

10.  We deal first with the application for leave to appeal against conviction.  In our view, this is wholly lacking in merit, and is impertinent. It is clear from the District Judge’s Reasons for Verdict that he was well aware that the key issue in the trial before him was the credibility of Hau (see paragraphs 21 and 105 of the Reasons for Verdict), and that he gave full consideration to this point, carefully dealing with all of the criticisms that had been made of her evidence (at paragraphs 106 to 128 of the Reasons for Verdict).  We consider that not only can it not be shown that he went wrong in any way, but, on the contrary, he was clearly right to take the view that Hau’s evidence was to be accepted.  In particular, it seems to us that the inherent probabilities of the situation, where the applicant was clearly the more mature and sophisticated of the conspirators, and Hau was, by contrast, still in her late teens, point overwhelmingly towards the applicant being the prime mover in the conspiracies.  To our mind, this was a cruel, callous and cowardly exploitation of an inexperienced and impressionable young woman by an older man, with whom she was romantically involved, for his own benefit, and the picture that the applicant sought to paint – of his being the scapegoat for Hau’s wrongdoing – is wholly unjustified.  It does the applicant no credit whatsoever that, even at this stage, he sought further to cast all the blame on Hau, and accepted not an iota of responsibility for his conduct.

11.  We therefore had no hesitation in dismissing the application for leave to appeal against conviction.

12.  So far as the appeal against sentence is concerned, we cannot see that the starting point of three years’ imprisonment on each of the first two charges, to be served concurrently, was in any way high, bearing in mind the nature and scale of the fraud and the applicant’s role as mastermind in it.  On the contrary, we think that it was too low, having regard to the applicant’s conduct in taking advantage of Hau’s young age and obvious affection for him in order to cause her to carry out criminal acts for his benefit, whilst enabling him to distance himself from the crime.  However, having regard to the fact that the application was, at an earlier hearing on 24 April 2013 before a single judge of this Court, referred to a full hearing on the question of sentence, we do not think that it would be right for us to increase the applicant’s sentence on Charges 1 to 2, despite the strong inclination to do so.

13.  However, so far as Charge 3 is concerned, it does seem to us that the sentence of two years is on the high side, particularly in the light of Hau’s sentence after appeal.  Having regard to all the circumstances of the case, we think that a sentence of 21 months’ imprisonment would be appropriate, and would adequately reflect the difference in the circumstances and criminality of the applicant and Hau.  However, it seems to us that there is no basis for reducing the period of imprisonment ordered to be served consecutively to that ordered in respect of Charges 1 and 2 below six months.  If anything, that period does not adequately reflect the different nature of the offence under Charge 3.  However, for the reasons explained in the previous paragraph, we do not propose to interfere with this part of the sentence so as to increase the overall period of time for which the applicant is to be imprisoned.

14.  That said, as will be apparent from the foregoing, we are firmly of the view that the application for leave to appeal against conviction was utterly unmeritorious.  It was brought in the face of overwhelming evidence against the applicant, and its impertinence was underlined by the approach taken by the applicant of seeking to cast the entirety of the responsibility for the offences upon Hau.  In those circumstances, we considered it appropriate to give a direction pursuant to section 83W(1) of the Ordinance that two months of the time that the applicant was in custody pending the determination of his appeal should not be reckoned as part of the term of the sentence to which he was subject.