HKSAR v. LAM SEE CHUNG STEPHEN

CACC 225/2020,
CACC 5/2021
& CACC 9/2021
(Heard Together)

[2021] HKCA 2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 225 OF 2020, NOS 5 & 9 OF 2021

(ON APPEAL FROM DCCC NOS 346 & 625 OF 2019, 365 & 626 OF 2020)

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J U D G M E N T

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1.  The applicant pleaded guilty to numerous fraud and related offences in three separate cases before District Court Judge K Lo (the judge) and was sentenced to a total term of 82 months and 148 days’ imprisonment (the equivalent of 7 years and 3 months’ imprisonment). He applies for leave to appeal against his sentence.

2.  In DCCC 346 and 625/2019, on 11 December 2020, the applicant pleaded guilty to 16 charges of fraud (Charges 1-3, 6, 9, 10, 13, 14, 17, 18, 21, 22, 25, 26, 29, and 32), 7 charges of driving without a valid driving licence, 7 charges of using a motor vehicle without third-party insurance, 1 charge of possession of an identity card relating to another person (Charge 30), 1 charge of failing to surrender to custody without reasonable cause (Charge 31), and 3 charges of theft (Charges 33-35). He was sentenced to imprisonment for 56 months and 120 days (the equivalent of 5 years’ imprisonment) and disqualified from driving or holding a vehicle licence for 18 months.

3.  The 16 fraud charges involved the applicant defrauding 16 victims. The victims were car owners who posted online advertisements to sell their cars. He would purport to purchase the cars by presenting signed personal cheques which were subsequently dishonoured. He would later resell the cars to car dealers. The dishonoured cheques involved a total amount of $426,500 and the cars were resold at a total sum of $167,640. The fraud charges occurred from 14 March and 23 April 2018, except for Charges 1, 2 and 32, which occurred in March 2017. The traffic offences concerned the applicant not holding a valid driving licence at the time he purportedly purchased and drove away with the cars. In one of the fraudulent transactions, he used another person’s identity card and in relation to the theft charges he misappropriated money paid by clients to his employer. The theft offences occurred on 23 and 24 September and 6 October 2017.

4.  The applicant was arrested on 24 March 2017 in relation to a deception case which allegedly occurred on 16 January 2017. He was put on police bail on 25 March 2017 but failed to answer bail on 12 July 2017. He was rearrested on 3 May 2018 and granted bail. However, he failed to attend a court hearing on 4 September 2018 (Charge 31). He was later located and rearrested on 23 February 2019.

5.  In DCCC 365/2020, on 11 December 2020, the applicant pleaded guilty to 5 charges of fraud (Charges 1-3, 5 and 6), 1 charge of attempted fraud (Charge 8), 3 charges of theft (Charge 4, 7 and 9), and 1 charge of possession of an identity card relating to another person (Charge 10). On 23 December 2020, he was sentenced to imprisonment for 30 months and 4 weeks, with 17 months and 4 weeks of this sentence to be consecutive to the sentence in DCCC 346 and 625/2019, resulting in a total sentence of 73 months and 148 days’ imprisonment.

6.  The applicant committed the 6 fraud charges over a period of 21 months (from 2 May 2017 to 22 February 2019) by posting or responding to advertisements for the sale of goods on social websites, and requesting the victims to deposit money into a bank account held by him. There were altogether 53 victims and the amount of money involved was $525,050, while the actual loss to the victims was $496,050. The 3 theft charges related to an overpayment of $7500 and the theft of two car plates.

7.  In DCCC 626/2020, on 23 December 2020, the applicant pleaded guilty to 2 fraud charges (Charges 1 and 2). He was sentenced to 16 months’ imprisonment, with 9 months of this sentence to be consecutive to the sentence of 73 months and 148 days’ imprisonment for the two previous cases, resulting in a total sentence of 82 months and 148 days’ imprisonment.

8.  The applicant committed the 2 fraud charges between 12 and 26 May 2017. He falsely represented to the victim, a restaurant operator, that he was acting as a go-between for a company offering a contract for the provision of meal boxes. The victim paid the applicant the sum of $236,000 for the purpose of tendering for the contract. He later falsely represented to the victim that he would set up a company for the purpose of bidding for future contracts, for which the victim paid the applicant $25,246.

9.  The applicant filed a notice of application for leave to appeal against his sentence in DCCC 346 and 625/2019 on 31 December 2020, in DCCC 365/2020 on 11 January 2021, and in DCCC 626/2020 on 15 January 2021. Each notice had attached to it an initial ground of appeal signed by counsel, in which it was complained that the total sentence and/or the consecutive element were manifestly excessive, except no complaint was made against the total sentence in DCCC 626/2020.

10.  On 18 June 2021, legal aid was granted to the applicant in respect of each case and Mr Wong Hay Yiu was assigned as counsel. On 4 August 2021, Mr Wong filed four perfected grounds of appeal. Ground 1 complains that the sentence of 82 months and 148 days’ imprisonment for the 3 cases was manifestly excessive and/or wrong in principle. Ground 2 complains that the judge erred in not obtaining an updated psychological report on the applicant in order to assess the criminality involved. This ground was subsequently abandoned in the appellant’s written submission dated 25 August 2021. Ground 3 complains that the 3 cases should have been dealt with at the same time by the same judge, taking into account the jurisdictional limit of the court of 7 years’ imprisonment. Ground 4 complains that the 3 cases were unnecessarily separated and could have been dealt with together, thereby depriving the applicant the benefit of the jurisdictional limit of the court.

11.  On 19 April 2021, the leave applications were fixed for hearing on 29 December 2021.

12.  On 21 December 2021, the Court received a facsimile transmission from Mr Eric TM Cheung, Principal Lecturer and Director of the Clinical Legal Education, University of Hong Kong, attaching a joint note from himself and Mr Chan, Chung Ming Josiah, Part-time Lecturer of the Clinical Legal Education Course. Mr Cheung advised that the Clinical Legal Education Office had been approached by the applicant, whose application for legal aid was refused in March 2021 on the basis that there was a lack of merit. He asked that the joint note be considered by the Court in determining the leave applications and whether an appeal aid certificate should be granted to the applicant. The joint note essentially complains that the total sentence was manifestly excessive and/or wrong in principle.

13.  I was informed by a representative of the Clinical Legal Education Office that the applicant wrote to the office seeking assistance in May 2021. It is to be regretted that it took so long to submit the joint note and in circumstances where the applicant was already represented by counsel assigned by legal aid. Whilst Mr Cheung seeks to provide legal assistance to unrepresented defendants through the Clinical Legal Education Office, greater care and responsibility should be taken to ensure that any submissions to the Court are provided in a timely manner without offending any professional requirements or obligations. I should add that I have been informed by Mr Cheung that the service they provide operates with limited resources and sometimes it is difficult to get things done in a timely manner because of the heavy workload and limited access to applicants.

14.  Mr Wong consulted the applicant about the submission from the Clinical Legal Education Office, who confirmed his instructions for Mr Wong to act on his behalf.

15.  Mr Wong’s grounds of appeal can be distilled to the following two arguments. The first argument is that the resultant sentence being the equivalent of 7 years and 3 months’ imprisonment exceeded the jurisdictional limit of the District Court by 3 months. He complains the prosecution deliberately and unfairly broke up the case into three separate cases as a means of achieving a sentence that exceeded the jurisdictional limit of 7 years’ imprisonment.

16.  Relevantly, the Court of Appeal (Stock JA and Lugar-Mawson J) in HKSAR v Wong Wan Shan, CACC 9 and 10/ 2002, 4 June 2002, addressed the application of the proviso to section 82(2)(a) of the District Court Ordinance, Cap 336, in which it held:

“23. Technically, the judge was wrong, to say without more, in his reasons for sentence in DCCC 882 of 2001 that his sentencing jurisdiction was limited to seven years’ imprisonment. The limitation in the proviso to section 82(2)(a) of the District Court Ordinance upon the aggregate terms of imprisonment that a District Court Judge may pass when imposing sentences, which are wholly or partly consecutive, is confined to those situations in which the sentences are imposed by the same judge on the same occasion; see: R v Yuen Shek On [1987] HKLR 736. In R v Chan Fook Hung [1991] 2 HKLR 519, this Court held that even if the sentence in the second case was imposed by the same judge who passed sentence in the first case, the limitation in the proviso did not apply as it was not passed on the same occasion.”

17.  See also HKSAR v Li Yan [1998] 4 HKC 12; and HKSAR v Ahmed Sani Salman, unrep., CACC 334/2017, 8 January 2019.

18.  Mr Wong does not take issue with the legal principle stated in Wong Wan Shan, so the question is whether the prosecution acted fairly and properly in bringing the three separate cases against the applicant in the District Court.

19.  This is not the first time this particular issue has been raised by the applicant. I am informed that when the cases were transferred to the District Court, an application was made by the applicant for the cases to be dealt with by way of plea and sentence on the same occasion and not be dealt with on separate occasions. The judge ruled against the application having heard argument and having been referred to the principle in Wong Wan Shan. The issue was again taken before the trial judge who also ruled against the applicant having heard argument from the parties.

20.  It is reasonably arguable whether the sentencing of the applicant occurred on the same occasion, notwithstanding it was 3 separate cases dealt with by the same judge at three different times; or whether the prosecution have improperly fragmented the cases when they could have been dealt with as one on the same occasion. The issue the applicant faces in advancing this ground is the principle in Wong Wan Shan and its application, and the two rulings refusing an application for the cases to be dealt with on the same occasion. There is the additional factor that the applicant by breaching his bail conditions on various occasions caused the cases to accumulate when they could have been dealt with separately. It will undoubtedly be argued that he has procedurally benefited by breaching his bail and preventing the legal processes from taking their natural course.

21.  This ground of appeal essentially turns on what is meant by “the same occasion” when sentencing an offender for different cases in the context of the jurisdictional ceiling of the District Court.

22.  The second argument is that the total sentence was manifestly excessive bearing in mind the jurisdictional limit and the need to provide a meaningful reduction for the applicant’s guilty pleas. Mr Wong very properly does not take issue with the starting point or the ultimate sentence imposed for each offence.

23.  Leaving aside the jurisdictional issue that is already the subject of Ground 1, I do not see any merit in this ground of appeal. The offending involved by the applicant was constant and brazen. He was unrelenting in his pursuit of victims as evidenced by the number of them and the range of criminal misconduct he employed to defraud them. He is an appalling recidivist who has flouted the law at will and with total disregard to the legal processes. The judge has carefully assessed the sentence for each offence, making appropriate adjustments in order to address the aggravating and mitigating factors, and pass a total sentence that is fair and balanced by the application of the totality principle.

24.  The applicant has an exceptionally bad criminal record, and his unremitting offending in the present three cases was clearly deserving of severe punishment. He has a long history of committing offences of fraud and deception and breaching conditions of bail.

25.  The applicant is 40 years of age. He first became involved in fraudulent conduct as revealed by his criminal record sometime before 20 March 2009 for on that day he was sentenced to 7 months’ imprisonment for one offence of obtaining property by deception and 6 offences of fraud. He next came before the courts on 18 May 2010 charged with one offence of fraud and one offence of attempting to obtain property by deception. He was sentenced to 200 hours of community service and ordered to pay compensation of $10,000. The next case related to offending that occurred in September 2008 when he gave two dishonoured cheques in the sums of $100,000 and $150,000 to repay part of a debt he owed to his then girlfriend. He was charged with two offences of evasion of liability by deception which were laid on 11 November 2010. He pleaded guilty to both charges on 7 June 2011 and his case was re-fixed for 11 August 2011 to allow him time to pay compensation to his victim. However, he failed to appear at the adjourned hearing and a warrant was issued for his arrest. By the time he was sentenced for these two offences on 21 December 2011, and that sentence was 16 months’ imprisonment, he had committed a large number of other fraud offences.

26.  In June 2011, he obtained three amounts of money totalling $27,000 from the same victim by fraud. He was charged with three offences of fraud. On 17 August 2011, he failed to attend court in respect of another case involving five fraud offences that he committed between September and November 2008. A warrant was issued for his arrest. He was eventually sentenced to 3 months’ imprisonment for the five fraud offences on 8 February 2012, and to 4 months’ imprisonment for the three fraud offences on 25 May 2012. At this stage, the applicant was serving a total sentence of 22 months’ imprisonment.

27.  Between 23 to 31 August 2011, the applicant purchased three used cars from the same victim and paid for them by cheques totalling $184,341, all of which were dishonoured. He was subsequently charged with three offences of obtaining property by deception. Also in August 2011, the applicant obtained two payments totalling $18,500 and a loan of $5,000 from the victim by means which became the subject of three fraud offences. In November 2011, he obtained monies from two different victims by means of deception and this conduct became the subject of two fraud offences. On 16 and 19 December 2011, the applicant bought two used cars from two different victims and paid for both of them by cheques in the sum of $48,000 and $45,000 respectively. Both of these cheques were subsequently dishonoured and in respect of this conduct, he was charged with two offences of obtaining property by deception.

28.  As a result of the cases being spread amongst different courts, the applicant took the issue on appeal before this Court. The subject of the appeal concerned offences that were committed between January and February 2011 in which the applicant stole a credit card and fraudulently used it on three occasions. He was sentenced to 32 months, imprisonment, 16 months of which were ordered to be served consecutively to a sentence of 44 months’ imprisonment that the applicant was then serving. The applicant committed these offences whilst he was on court bail for the September 2008 dishonoured cheque offences and on police bail for the September to November 2008 fraud offences.

29.  On 3 September 2013, McWalters JA, giving the judgment of the Court,[1] reduced the applicant’s sentence of 5 years’ imprisonment to 4 years and 3 months’ imprisonment after applying the totality principle. As explained by McWalters JA the purpose of the totality principle is to achieve a just and balanced sentence that will not disproportionately punish for his offending. He discussed the relevant sentencing principles, noting that where an offender preys upon the community, the sentence should seek to protect it from his depredations. He added that at times a severe sentence will be an appropriate sentence response and just because a sentence is severe does not mean that it is not just and balanced. These words from the Court of Appeal did not resonate with the applicant at all for not long after he served his sentence he was back engaging in the same criminal conduct with greater vigour and determination than before.

30.  On 17 September 2015, the applicant was sentenced 12 months’ imprisonment in relation to five offences of evasion of liability by deception and two offences of obtaining property by deception. On 20 June 2018, the applicant was sentenced to 7 days’ imprisonment for shoplifting. These offences need to be considered together with the numerous offences in the present cases which spanned a period of 2 years, from January 2017 to February 2019. He was convicted of 47 offences, which consisted of 24 fraud and 6 theft offences. There were a total of 71 victims with losses exceeding $1.2 million. As pointed out by Mr Joe Hui, for the respondent, the applicant practiced his deceit and deception on multiple victims, sometimes more than one victim on a single day or on consecutive days. He employed an array of deceitful methods or means to swindle people out of money. His conduct was unrelenting, well-planned and callous in the extreme.

31.  The suggestion was made in Lam See Chung Stephen that “some assistance can be gleaned, from sentencing bands for breach of trust cases”, although McWalters JA did accept that the sentencing bands were not relevant to credit card offences, which were under consideration by the Court at that time.[2] Mr Wong has sought to make such a comparison with these cases. I do not consider such an exercise to be of much utility. It is important to focus on the criminality involved and the culpability of the offender, when assessing an appropriate form of punishment for what has taken place. Making such a comparison can be a distraction from this important sentencing objective. Whilst looking at the individual offences and categorising them as relatively minor, is to lose sight of the overall criminality involved. I do not consider that the sentence imposed on the applicant was manifestly excessive, although the basis of the calculation of the sentence in terms of 148 days could have been appropriately expressed in terms of years, months or days.

32.  It follows that I am not of the view that this ground is reasonably arguable.

33.  The only basis on which leave is granted to the applicant is in respect of the jurisdictional issue in Grounds 3 and 4, although there are aspects to this ground that will have to be addressed by the applicant before the Court of Appeal.