HKSAR v. JULIUS NDIKUM CHI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 365
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant together with two other men was convicted of conspiracy to defraud after a trial in the District Court before Deputy Judge Ma. He was sentenced to 3 years and 3 months' imprisonment. Initially he sought leave to appeal against his conviction. This he has now abandoned and the application in respect of the conviction has been dismissed. He also seeks leave out of time to appeal against the sentence which has been imposed upon him. The reason he gives for being out of time in respect of his appeal against sentence is that he did not appreciate the difference between appeals against conviction and appeals against sentence. This is hardly a convincing excuse having regard to the form he signed which clearly states the distinction and goes on to direct that both applications should be entertained at the same time.

2. The facts of the case related to what has now become the well known scam of persuading a victim to part with US$ bills and then demonstrate to him the ability to make up two other notes by applying a chemical process to the note provided by the victim. In the present case the victim was asked to provide US$500,000 . The suggestion was that he would receive a further US$500,000 and the Applicant and his co conspirators would receive a like sum. The charge was framed in this way:

"Conspiracy to defraud, contrary to Common Law.

Particulars of Offence

John JOBI, Willibroad Ngam NGONG and Julius Ndikum CHI, on or about the 9th day of January 1998, in Hong Kong, conspired together to defraud Charlie Nigel DUIGAN of the sum of $0.5 million Unites States currency by falsely representing that:

(i) they had United States banknote negatives totalling US$5 million;

(ii) every two United States currency banknote negatives could be developed into two United States currency banknotes by using one genuine United States currency banknote with the application of special chemical; and

(iii) on provision of banknotes in the sum of $0.5 million United States currency to develop the said negatives, Charlie Nigel DUIGAN would receive banknotes in the sum of $1 million United States currency in return."

3. The prosecution case was almost entirely dependent upon the evidence of an undercover police officer. He was the gentleman named in the charge. He had been introduced to 1st Defendant in the trial below by a police informer. A meeting took place at the coffee shop of the Holiday Inn Hotel at Tsim Sha Tsui where the officer met 1st Defendant and 3rd Defendant who is the Applicant. They were taken upstairs to a hotel room where they met 2nd Defendant in the trial below.

4. The scheme was outlined to the officer. He was asked to produce a US$100 note. He gave 1st Defendant two HK$500 notes and he went out to a moneychanger and obtained US$100. He gave the receipt to the officer together with the change and the officer marked the number of the US$ note on the reverse side of the receipt.

5. The demonstration was then proceeded with. Two black notes were produced by the conspirators. Chemicals were applied to them and in due course the black colouring disappeared and revealed two US$ notes which both had different serial numbers to the note which had been provided by the officer.

6. The conspirators went on to say that if a large number of notes were going to be processed it would take approximately 24 hours. The officer said that he would endeavour to obtain the US$500,000 and the parties exchanged their telephone numbers. When the officer left the room he gave a signal to other police officers outside and they came and arrested the men. The police officer gave evidence that at all times he assumed a passive role and did not himself initiate any action.

7. Before us the Applicant said that no one suffered any loss. Also he claimed that there had been entrapment. This is not so. The Judge gave 1st Defendant the benefit of a reduction in sentence on this account. It was quite wrong to do so. It is impossible to follow the logic of giving a discount to one conspirator in circumstances such as these and not doing so for the others. However as we have already said there was no entrapment at all. The undercover officer was merely performing his duties in an entirely proper manner. In no way were the men encouraged to do anything which they would not have done. The police must not in any way be discouraged from mounting operations of this nature.

8. The Applicant went on to refer to another case where a lesser sentence was imposed. It goes without saying that every case is different and dependent on its own individual circumstances.

9. The application for leave to appeal out of time is without merit. No acceptable reason has been given for the failure to lodge the application timeously. It is perhaps relevant to add that even if it had been lodged in time the prospects of success would have been non existent. Having regard to the nature of the conspiracy it cannot be said that the sentence was in any way excessive or wrong in principle. The application is dismissed.