HKSAR v. LAM YUET SIU

CACC411/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 411 OF 2002

(ON APPEAL FROM DCCC NO. 233 OF 2002)

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J U D G M E N T

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Jackson J (giving the judgment of the Court) :

Introduction

1. On 6 August 2002 in the District Court the applicant (who was the 2nd defendant at trial) and another defendant (the 1st defendant) were convicted after trial before Her Honour Judge Chua of the following offences :

" 1st Charge (against D1 and the applicant)

Statement of Offence

Theft, contrary to section 9 of the Theft Ordinance, Cap. 210.

Particulars of Offence

WONG Kit-ling and LAM Yuet-siu Allian SALIM, on or about the 18th day of July 2001, in Hong Kong, stole a chose in action, namely a debt in the sum of $1,500,000.00 Hong Kong currency owed by DBS Kwong On Bank Limited to LAW Tiang-kie, the property of LAW Tiang-kie.

2nd Charge (against D1 and the applicant)

Statement of Offence

Theft, contrary to section 9 of the Theft Ordinance, Cap. 210.

Particulars of Offence

WONG Kit-ling and LAM Yuet-siu Allian SALIM, on or about the 16th day of August 2001, in Hong Kong, stole a chose in action, namely a debt in the sum of $2,000,000.00 Hong Kong currency owed by DBS Kwong On Bank Limited to LAW Tiang-Kie, the property of LAW Tiang-kie.

3rd Charge (against D1 only)

Statement of Offence

Theft, contrary to section 9 of the Theft Ordinance, Cap. 210.

Particulars of Offence

WONG Kit-ling, on or about the 8th day of December 2000, in Hong Kong, stole a chose in action, namely a debt in the sum of $566,257.68 Hong Kong currency owed by DBS Kwong On Bank Limited to LAM Lai-wa and LEUNG Chi-wai, the property of LAM Lai-wa and LEUNG Chi-wai.

4th Charge (against the applicant only)

Statement of Offence

Dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455.

Particulars of Offence

LAM Yuet-siu alias Allina SALIM, on or about the 18th day of July 2000, in Hong Kong, knowing or having reasonable grounds to believe that property, namely the sum of $1,158,000.00 Hong Kong currency, in whole or in part directly or indirectly represented the proceeds of an indictable offence, namely, theft, dealt with the said property.

5th Charge (against the applicant only)

Statement of Offence

Dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455.

Particulars of Offence

LAM Yuet-siu alias Allina SALIM, on or about the 15th day of August 2001 and the 31st day of August 2001, both dates inclusive, in Hong Kong, knowing or having reasonable grounds to believe that property, namely the sum of $2,000,000.00 Hong Kong currency, in whole or in part directly or indirectly represented the proceeds of an indictable offence, namely, theft, dealt with the said property."

2. In short then the 1st defendant was convicted of three offences of theft and the applicant was convicted of two offences of theft and two offences of dealing with property known or believed to represent proceeds of an indictable offence. The 1st defendant was sentenced to two years' imprisonment in respect of the 1st charge and to three years and two months' imprisonment in respect of both the 2nd and 3rd charges, such terms to be served concurrently. The applicant was sentenced to three years and five months' imprisonment in respect of each of the 1st, 2nd, 4th and 5th charges, those sentences to be served concurrently as between themselves but the judge ultimately - as to which we shall shortly return - ordered or purported to order that those sentences were to run consecutively to a term of one year and nine months which she was then serving and which was imposed on 23 February 2002.

3. On 11 March 2003 both the 1st defendant and the applicant applied for leave to appeal against both conviction and sentence before Leong CJHC. Their applications were dismissed. Both the 1st defendant and the applicant then sought leave before us to renew their applications for leave to appeal against both conviction and sentence. The 1st defendant abandoned both of her applications by notice dated 10 May 2003. When the applicant came before us on 16 May she abandoned her application in relation to conviction but pursued her application in relation to sentence.

4. On 16 May we dismissed the application in relation to conviction and we gave leave to the applicant to renew her application in relation to sentence. We treated the hearing of that application as the hearing of the appeal allowed the appeal and ordered that she serve three years and five months' imprisonment in respect of each of the offences of which she had been found guilty such sentences to be served concurrently as between themselves and to take effect from 6 September 2002. So that there is no doubt about it the sentence of three years and five months' imprisonment is to commence one month after its imposition on 6 August 2002 and otherwise concurrently with the balance of the sentence imposed on 23 February 2002.

5. Our reasons follow.

The prosecution's case at trial

(b) on 5 September 2001, a customer of the bank ("the customer") received a bank statement relating to his account for August 2001;

(c) to his consternation he noticed a withdrawal of HK$2 million dated 16 August 2001 (Charge 2) and an overdraft balance brought forward of HK$1,483,366.82 from the previous month. He had not withdrawn the $2 million; nor had he used any overdraft facility that year. His account had been in credit;

(d) not surprisingly the customer went to the bank to lodge a complaint. He was accompanied by his wife and they were seen by the Branch Manager and the Marketing Manager. Since the customer had not received a bank statement for July 2001, he was given a copy. On that statement he saw another unauthorized withdrawal of HK$1.5 million dated 18 July 2001 (Charge 1);

(e) the Bank's journal for 18 July 2001 indicated that a cash withdrawal of HK$1.5 million had been made from the customer's account and, from that sum, a cash deposit of HK$1,158,000 was paid into an account of the solicitors' firm which firm was acting in the applicant's property purchase. The journals for 15-16 August 2001 indicated a memo withdrawal of HK$2 million from the customer's account and a memo deposit of the same sum into an account of a 'J's Company' owned by the applicant and from which the applicant made 12 withdrawals;

(f) with respect to the first incident in time a bank teller said that the 1st defendant, who was her supervisor, approached her on 18 July 2001 with one withdrawal slip and one deposit slip, saying she wanted to do a transfer in the teller's computer terminal and she proceeded to do so;

(g) with regard to the second incident in time another bank teller was able to identify from the journal record of 15 August 2001 that she had effected the memo transfer of HK$2 million to the applicant's J's Company's account; and

(h) audio telephone recordings from the bank revealed conversations between the 1st defendant and the applicant between 14 and 20 August 2001. In one such the applicant was pressing the 1st defendant to deposit HK$2 million into the applicant's J Company account. In others the applicant repeatedly reassured the 1st defendant that she was expecting a remittance of HK$18 million to be made into her account and that both of them would be "alright". That remittance did not materialize.

7. In her initial 'home-made' grounds of appeal relating to sentence, the applicant complained that the sentence imposed upon her was manifestly excessive and further that the judge "suddenly amended the sentence without proper procedure".

8. The second of these grounds was unusual to say the least. In January 2003, when this matter came before another single judge for leave, he was in possession of a transcript of the hearing of 12 August and Reasons for Sentence which referred to 6 August. Alerted by the applicant's complaint and by the District Court clerk's note of the order made on 6 August, he ordered a transcript of the hearing of 6 August.

9. What the judge said in sentencing the applicant on 6 August 2002 was this :

" ... As for D2, she has a previous record, all three involving dishonesty. In 1993 she was incarcerated under a Hospital Order for a year. She is presently appealing a 21 month sentence imposed at the end of February this year for procuring a valuable security, an offence similar to the ones in 1993.

She is sentenced to 3 years and 5 months on charges 1, 2, 4 and 5. These sentences are to run concurrently with each other and consecutive to the sentence she is presently serving by 1 month." [emphasis added]

10. Plainly the sentence imposed on 6 August was in principle inappropriate since the present offences were committed whilst on bail for the earlier offences. No doubt the judge, after 6 August, came to the same view. However somewhat to our surprise we note that on 12 August the applicant was brought back before the judge but, so far as we can ascertain, no representative of the prosecution was invited to attend that hearing. The following exchange took place between the judge and the applicant who continued to be unrepresented :

"COURT: Yes, Miss Lam, the reason you are brought here is I made a mistake last time. Your sentence is consecutive to the sentence you are serving. It's not a month extra.

2ND DEFENDANT: I see.

COURT: All right?

2ND DEFENDANT: Yes.

COURT: So that's what you'll get.

2ND DEFENDANT: It's two combined together to do it or what?

COURT: No, no. It's not concurrent, it's consecutive. You finish your present sentence, then you start your new sentence.

2ND DEFENDANT: Your Honour, I thought it's wrongly doing this together.

COURT: No, no. You've got a new sentence because you have committed new offences.

2ND DEFENDANT: Yes.

COURT: So that sentence...

2ND DEFENDANT: Separate.

COURT: ... is separate from the one you are currently serving.

2ND DEFENDANT: I see.

COURT: But what I said was that it will start a month after which means it would have been longer by a month so it was a slip of my tongue. So I've called you back to say your new sentence for the new offences will start after you finish whatever you're serving now."

11. A number of questions arise from this state of affairs not least of which is what did the judge intend by the sentence she imposed on 6 August? Further we have had to ask ourselves whether the judge had jurisdiction to alter or to amend that sentence on 12 August and, even if so, what was the practical effect of such alteration or amendment, and was the course adopted by the judge unjust?

12. The answers to those questions seem to us to be as follows :

(a) the judge in her sentence imposed on 6 August can only have meant that the applicant was to serve concurrent sentences of three years and five months' imprisonment which sentences were to commence one month later (i.e. on 6 September). [See section 68 of the Criminal Procedure Ordinance, Cap.221]. Any other view of what she said would appear to be a nonsense and we fail to see how this can be categorised (as the judge sought to categorise it, and as did counsel for the respondent before us), as a 'slip of the tongue'; and

(b) it is unnecessary to determine whether the judge had jurisdiction to vary the sentence as she purported to do on 12 August, although we doubt that she had. We were not addressed on the question of jurisdiction. It suffices for present purposes to say that to bring this unrepresented applicant back 6 days after the event and effectively increase the sentence imposed by 15 months gave to her a justified sense of grievance. The course adopted by the judge on 12 August was plainly unjust, and wrong in principle.

13. In the event we made enquiry directly of the applicant who, hardly surprisingly being somewhat confused by the effect of what had happened on 6 and 12 August 2002, indicated her concern as to which sentences were concurrent and which were consecutive.

14. She was apparently content - and perhaps not surprisingly in the light of the events which had taken place to be told by us that we were considering the making of the order which we did make, i.e. the order confirming the sentence which we felt had plainly been intended (despite the apparent ambiguities in her language) by the judge on 6 August. In a sense the applicant is fortunate in that the order which the judge ought to have made on 6 August, but did not, is the one which she made on 12 August.

15. In short, therefore we ordered that the original sentence of the judge should stand.