HKSAR v. CHUNG WAI YUM

CACC 152/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 152 OF 2015

(ON APPEAL FROM DCCC NO. 628 OF 2014)

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J U D G M E N T

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1.  The applicant, who was the second defendant at trial, was charged together with other named co-conspirators with four counts of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200. D1 and D5 pleaded guilty to the charges against them, whereas the applicant, D3 and D4 pleaded not guilty to the charges they faced. Following a trial in the District Court, HH Judge Casewell (“the judge”) convicted the applicant of Charges 1, 2 and 4 but acquitted him of Charge 3, while he convicted D3 of Charges 2 and 4. D4 was acquitted of all charges. D1 had pleaded guilty to Charges 2, 3 and 4.

2.  The judge imposed sentences after trial on the applicant of 30 months’ imprisonment on each charge, ordering all charges to run concurrently with each other save for 3 months of Charge 1, which was ordered to run consecutively to the sentences on the other charges.  The total sentence passed on the applicant was, therefore, 33 months’ imprisonment.  He now applies for leave to appeal against sentence.

The prosecution case

3.  For present purposes, I shall gratefully adopt the summary of the case presented by the prosecution in their written submission.  The applicant was the mastermind of a syndicate whose intention and purpose was to trick the sellers of valuable goods on the Internet into meeting D1, who claimed she was the applicant’s girlfriend, at an MTR station for the purported purpose of making payment for the goods.  After inspecting the goods, D1 would ask the sellers for their bank account details in order to deposit cheques into the sellers’ accounts for completion of the purchase.  D1 would then inform the applicant of the bank details and the applicant would arrange cheques to be deposited into the sellers’ accounts via ATM, in order to give a false impression to the sellers that payments had actually been made.  After checking the bank balance by ATM, the sellers would then hand over the goods to D1 on the strength of the payment of the purchase price.  D1 would then leave the scene with the goods and hand them over to the applicant.  All of the cheques concerned were void.  The prosecution case was that D3 and D4 were to provide the transport for D1 to meet the sellers, while D5 was responsible for banking the cheques by way of ATM.

4.  The main evidence against the applicant came from the testimony of D1, who gave evidence as a prosecution witness following her plea of guilty.  There was also some surveillance evidence which was supportive of D1’s account.  The date of offences was 28 February 2014 (Charge 1), and 7 March 2014 (Charges 2 and 4).

Grounds of appeal against sentence

5.  In his Form XI, the applicant contends that the overall sentence of 33 months’ imprisonment imposed on him was unfair because D1 received concurrent sentences on Charges 2, 3 and 4, whereas 3 months of the applicant’s sentence on Charge 1 was ordered to run consecutively to the other sentences.  He also points out that D3 received concurrent sentences of a Training Centre Order on Charges 2 and 4.

Consideration

6.  The judge found that the applicant was the mastermind of the conspiracies.  It is a well-established principle of sentencing that the mastermind of a conspiracy may be punished more severely than his co-conspirators.  The reasons are obvious: his role and culpability would invariably be much greater than the subordinate accomplices whom he brings into the conspiracy.  That being the principle, the applicant may regard himself as fortunate that he received the same starting points as D1 and D5, who both pleaded guilty.

7.  It is also a well-established principle of sentencing that separate offences committed on different days may be treated by way of consecutive or partly consecutive sentences, subject to the totality principle.  The conspiracies in Charge 1 on the one hand, and Charges 2 and 4 on the other, whilst similar in design and objective, involved different victims and were committed a week apart.  The judge was right to consider a consecutive element, subject to the totality principle, as between Charge 1 and Charges 2 and 4.

8.  The fact that the judge made all sentences concurrent in D1’s case does not provide any reason for saying that the overall sentence in the applicant’s case is either manifestly excessive or wrong in principle.  D1 had pleaded guilty to Charges 2, 3 and 4 only, all of which offences were committed on the same day.  The applicant’s offences, however, included Charge 1, which was committed a week before Charges 2 and 4 (of which he was convicted) and Charge 3 (of which he was acquitted).  But even if it had been the case that D1 was fortunate in having her sentences for the same offences as the applicant made concurrent, whereas the applicant was given a consecutive element for one of them, that would not automatically translate into a windfall for the applicant and mean that the sentence passed on him was wrong in principle or manifestly excessive, if it was an otherwise correct sentence.  D1 fell to be dealt with much more leniently than the applicant, having cooperated with the prosecution in giving evidence against him.

9.  Given the fact that the applicant was found to be the mastermind of three different conspiracies on two different dates, I cannot at this stage see any arguable ground of appeal against an otherwise proper sentence.  Indeed, given that the judge adopted the same starting point for the mastermind as for the accomplices, the applicant may consider himself fortunate that his sentence was not longer.

Conclusion

10.  The application for leave to appeal against sentence is refused.  The applicant is duly advised of his right to renew his application to the Court of Appeal but he has also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.