HKSAR v. WOO MEI BO, MABLE

CACC 274/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 274 OF 2014

(ON APPEAL FROM DCCC 343/2013)

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REASONS FOR JUDGMENT
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Hon Pang JA (giving the reasons for judgment of the court):

1.  On 31 July 2014, before HHJ Johnny Chan in the District Court, the applicant was convicted after trial of the following charges: Charge 1, ‘using a false instrument’[1]; Charge 2, ‘possessing a false instrument’[2]; and Charge 3, ‘using a copy of a false instrument’[3]. On the same day, she was sentenced to the respective terms of 6 years’, 2 years’ and 6 years’ imprisonment, to be served concurrently. On 11 February 2015, the applicant’s applications for leave to appeal against conviction and sentence were refused by the single judge (Lunn VP). On 9 March 2015, by then out of time for about two weeks, the applicant filed her Notice of renewal of application after refusal by the single judge (Form XIII) to appeal against sentence only. On 27 October 2015, after a hearing, we allowed the renewed application, treated the application as the appeal itself, allowed the appeal and substituted the applicant’s overall sentence of 6 years’ imprisonment with one of 5 years and 10 months’ imprisonment. These are our reasons.

THE FACTS

2.  Subject to some variations, the recital of the facts that follows is largely taken from the single judge’s judgment in the leave application.

Charge 1 – Using a False Instrument (Exhibit P1)

3.  Leung Wing-sun (“LEUNG”: PW1[4]) was a financial middleman.  He introduced investment opportunities to his clients for a commission.

4.  At a meeting on 4 March 2011, LEUNG was introduced to the applicant and the applicant’s Taiwanese partner, Wang Tsung-his (“WANG”), at the coffee shop in the Bank of China Building.  The applicant told LEUNG that she was looking for people to invest HK$100 billion in a railway project on the Mainland.  In support of her creditworthiness, the applicant told LEUNG that she had over HK$19 billion in her Bank of China (Hong Kong) (“BOC”) account.  In response to LEUNG’s request that she provide some proof of capital, the applicant left him for about 20 minutes and on her return handed him a document apparently on the letterhead of the BOC dated 4 March 2011 (Exhibit P1), which stated that in the stipulated account in the name of the applicant there was a credit balance of about HK$19.8 billion.  It was an admitted fact that the document was a false instrument, in that it was not issued by the BOC on that date or at all and did not reflect the true state of the applicant’s bank account at that time.  The opening balance of the account on 4 March 2011 was about $20,000.

Charge 3 – Using a Copy of a False Instrument (Exhibit P3)

5.  In addition, the applicant told LEUNG that she had HK$39 billion in her Hongkong and Shanghai Banking Corporation (“HSBC”) account.  In response to LEUNG’s request that he be shown proof of capital from the HSBC account, LEUNG met the applicant and WANG at the Harbour Grand Hotel in the afternoon of 4 March 2011. There, the applicant handed him a copy of a document apparently on the letterhead of HSBC dated 4 March 2011, which stated that a stipulated account in the name of the applicant held a credit balance of HK$39 million (Exhibit P3).  It was an admitted fact that the document was a copy of a false instrument.  The original was not issued by HSBC on that date or at all and did not reflect the true state of the applicant’s bank account at that time.  The account was closed on 3 March 2011.

Subsequent Events

6.  At a meeting between the same parties and others on 5 March 2011, various documents relating to the railway project were signed.  The effect of these agreements was that, if LEUNG’s party succeeded in introducing investors of HK$100 billion into the investment project, LEUNG’s party would make a huge profit.

7.  LEUNG succeeded in finding a consortium which was interested in investing in the applicant’s railway project and a meeting was convened on 8 March 2011 at the HSBC Headquarters in Central between, on the one hand, LEUNG and two representatives of the consortium and, on the other hand, the applicant, WANG and an Indonesian Djohan Pangestu (“DJOHAN”), an associate of the applicant and WANG.  At that meeting, as proof of capital, the applicant gave the two representatives of the consortium a document.  For its part, LEUNG said that he had obtained from one of those two persons what he understood to be a copy of the document (Exhibit P10) only subsequently.

8.  On 13 or 14 March 2011, the consortium told LEUNG that they wanted the applicant to change the HK$39 billion in her HSBC account into US dollars.  On 17 March 2011, LEUNG passed the request to the applicant through WANG.  WANG told LEUNG that the applicant was not happy with the arrangement.  Soon after that, WANG had a meeting with LEUNG at Harbour Grand Hotel.  When the two met, WANG handed a copy of a “Cease and Desist Order” dated 17 March 2011 to LEUNG.  The latter and related parties were directed to cease and desist from all activities in implementing the earlier agreements.  WANG told LEUNG that the applicant would suffer a loss in exchange rate if she had to exchange the HK$39 billion into US dollars.  LEUNG was upset.

9.  On 19 March 2011, LEUNG met WANG, who told him that the applicant would continue with the financing business if LEUNG would lend her US$1 million to cover the loss arising from the costs flowing from the exchange rate in converting the applicant’s HK$39 billion to US dollars.  In return, the lender would get US$50 million if the project went ahead.  LEUNG told WANG that he would introduce someone.

10.  At a meeting on 21 March 2011, having been shown by LEUNG Exhibits P1, P3 and P10 at a meeting at the Regal Hotel, Cheung Ka-lung (“CHEUNG”: PW2) agreed to lend US$1 million to the applicant. Before that, two associates of LEUNG, Man Chung-pui (“MAN”: PW3) and Mao Chak-sang (“MAO”: PW4) had suggested to LEUNG that CHEUNG was in a position to lend the money.

11.  On 22 March 2011, LEUNG, CHEUNG, MAO and MAN went to a solicitors’ office in Lippo Centre in Admiralty and met the applicant, DJOHAN and WANG.  There, the applicant and CHEUNG signed a loan agreement, pursuant to which the latter agreed to loan US$1 million to the former.

12.  LEUNG said that he and the applicant were present in the afternoon of 22 March 2011 when a document entitled “Irrevocable Payment Instruction” was signed by WANG at the office of other solicitors in Central.  Having signed the document, CHEUNG went to a branch of HSBC in Central where he transferred HK$7.8 million from his account to an account nominated by the applicant.  Having obtained a “Transaction Advice” which reflected the transaction, a copy was given to the applicant.

13.  There was no dispute that on 23 March 2011 the applicant withdrew over HK$327,000 from the account that she nominated to receive CHEUNG’s payment of HK$7.8 million in order to pay the balance of money due for the purchase of a vehicle she had bought on 22 March 2011.  On the same date, she transferred HK$6 million from the nominated account to her own bank account.  On 25 March 2011, she made a payment from that account of $189,000 in respect of her purchase of a village house.

Charge 2 – Possessing a False Instrument (Exhibit P16)

14.  The applicant was arrested by the ICAC on 26 July 2012.  Her home was searched and Exhibit P16 was found in a drawer in her bedroom.  It was an admitted fact that Exhibit P16, apparently on the letterhead of HSBC and addressed to the applicant, was a false instrument and did not show the true state of the applicant’s bank account at that time.  That letter, dated 12 January 2011, asserted:

“According to our records, Ms Woo has established a satisfactory account relationship, She is a premium & highly Privileged for My bank.

With our Bank since May 1982 reflecting a 200 million (USD) credit balance in Hong Kong equivalent to date.  Our experience with her had been satisfactory.”

THE SENTENCE

15.  Insofar as it is relevant, the following is what the judge said when sentencing the applicant[5]:

“8. The defendant is a 49-year-old lady with many previous convictions. In 1982 she was convicted of two counts of theft and one of giving false information to police officers. In 2002 she was convicted of one count of obtaining pecuniary advantage by deception, one of evasion of liability by deception, and four counts of theft. In 2004 she was again convicted of one count of procuring the making of an entry in certain records of a bank by deception, three counts of obtaining property by deception, and six counts of theft.

9. Mr Kwok in mitigation submitted that the decision to lend US$1 million on the part of Mr Cheung, PW2 in this case, appears to be one made overnight by the witness. The defendant had not by conduct or by words persuaded the victim to lend her the money.

10. Mr Kwok told me the defendant is a mother of seven children aged between 16 to 25, and three of them are still at school.

11. The present case is a very serious case of using false instruments. With the use of P1 and P3, the defendant succeeded to swindle HK$7.8 million from PW2, Mr Cheung. Mr Cheung at the end suffered a total loss of HK$6.3 million, as he received HK$1.5 million as partial payment sum after he had lent the money to the defendant.[6]

12. The evidence shows that the defendant acted with a Taiwanese Wang Tsung‑hsi and an Indonesian, Djohan Pangestu.

13. The act of using the false Bank of China document in fact took place at the coffee shop located at the lobby of Bank of China building, and in the afternoon on the same day, the defendant used the subject matter of Charge 2.

14. The crimes committed by the defendant were premeditated and were executed with great care. The evidence shows that the defendant benefited from the crimes. The moneys deposited into the designated account were used by the defendant.

15. In sentencing the defendant, I have borne in mind the facts of this case and the amount of money suffered by Mr Cheung.

16. The defendant is not a person of clear record. In fact, the criminal record of the defendant shows that she is a seasoned fraudster.

17. In my judgment, Charge 1 and Charge 3 call for a starting point of 6 years’ imprisonment. The defendant has shown no remorse throughout the trial. As for Charge 2, a starting point of 2 years’ imprisonment is appropriate.

18. For the reasons given, on Charge 1, I sentence the defendant to 6 years’ imprisonment. On Charge 2, I sentence the defendant to 2 years’ imprisonment. On Charge 3, I sentence the defendant to 6 years’ imprisonment.

19. Bearing totality in mind, I order all terms of imprisonment for Charge 1, 2 and 3 are to run concurrently with each other.”

GROUND OF APPEAL

16.  Mr McGowan who acted on behalf of the applicant had advanced two but in effect one ground of appeal, namely, the judge had wrongly failed to give the applicant credit for the restitution of HK$1.5 million and, as a result, the overall sentence of 6 years’ imprisonment was manifestly excessive and/or wrong in principle.  The same point was not argued at the leave application when the applicant was differently represented.

DISCUSSION

17.  The loan agreement between CHEUNG and the applicant was an exhibit at trial (Exhibit P29A)[7]. By that agreement, the HK$7.8 million-loan was (a) for a period of two months, repayable in full with interest on 22 May 2011; (b) in case of default, subject to a penalty payment at an enhanced interest rate; (c) not extendable without the lender’s consent and (d) in any event, not amenable to any extension exceeding “half of the original duration period at the maximum”. 

18.  These stipulations were aimed at facilitating the repayment of a genuine loan.  They were of no use to CHEUNG whose evidence was that, no sooner than the money was transferred, nothing more was heard of the applicant and her railway project.  CHEUNG, nevertheless, kept up his pursuit with LEUNG, WANG and DJOHAN and “after a very long time”, suddenly discovered a deposit of HK$1.5 million in his bank account.  Being careful not to infringe the rule against hearsay, CHEUNG was not asked to recount the inquiries that he had made of this money.  With the help of a leading question by prosecuting counsel, he said he “believed” this money to be a partial repayment under the loan[8].

19.  On the basis of a letter that was not produced in the lower court, it is now admitted by the parties that this money did come from the applicant.  Addressed to CHEUNG, this correspondence was under the letterhead of a firm of solicitors dated 1 December 2011.  The same correspondence undertook the full repayment of the loan within a 3-month period, failing which a monthly repayment scheme would be put in place with interest.

20.  No more repayment was, in fact, made by the applicant.  A cross-check with the case chronology would also show that some two months before the letter just mentioned, CHEUNG had reported the matter to the ICAC.  In the circumstances, we have difficulty subscribing to Mr McGowan’s categoric and unreserved proposition that the payment of HK$1.5 million constitutes ‘restitution’.  For us, the distinct lack of parallel indicators of remorse to the act militates against such a classification.  What it did do, however, was to alleviate CHEUNG’s loss of HK$7.8 million by 19% and, to that extent, we are persuaded that a small reduction in sentence was warranted on its account. 

21.  The question is: did the judge accord this benefit to the applicant?  The law being that if a judge had correctly identified a mitigating factor, then albeit that he had not followed the preferred approach of stipulating a specific discount from a specific starting point, but had instead factored that mitigating factor into a lower starting point for sentence, the ultimate sentence, if correct, would still be upheld in a subsequent appeal[9].

22.  Having carefully considered what the judge said (the passages quoted under paragraph 15 above), we are not convinced that that was the position here. What meagre reference there is to the HK$1.5 million[10], its characterisation was nothing more than an adjustment of loss of undecided provenance.  It is clear that the judge did not regard it as anything that could earn the applicant some credit, whatever her motive.  This may be because of the evidence which CHEUNG gave (see paragraph 18 above), but that is the position that the judge had taken.  

23.  Given the situation, our only remaining task is to have a fresh look at the applicant’s sentence.  Granted that a small discount is in order, is the overall sentence of 6 years’ imprisonment a proper one?  That is the question.  In this regard, it is important to note Mr McGowan’s submission that, although on the basis that the judge had passed the sentence, the 6 year-term may not be manifestly excessive, it is nevertheless a stiff sentence.  The question he then posed is: if no money had been returned at all, would the judge have imposed a sentence exceeding 6 years?  Thus put, we think the answer must be ‘no’, with the ensuing conclusion that the existing sentence should be lowered.

24.  The reason that the applicant gave for her delay in renewing this application is unsatisfactory – she said “there was a misunderstanding”.  Nonetheless, the application should be allowed lest we would shut out an otherwise meritorious ground of appeal[11].

DISPOSAL

25.  For the above reasons, we had given orders as per paragraph 1 of this judgment.  To give them effect, we had further ordered that the sentence on Charge 1 and Charge 3 be reduced to 5 years and 10 months’ imprisonment, to be served concurrently with the sentence on Charge 2 in its existing term of 2 years’ imprisonment.

[1] Contrary to section 73 of the Crimes Ordinance (Cap 210).

[2] Contrary to section 75(2) of the Crimes Ordinance (Cap 210).

[3] Contrary to section 74 of the Crimes Ordinance (Cap 210).

[4] Prosecution witnesses are identified in this judgment by their alpha-numerical designations at trial.

[5] Appeal Bundle, page 48, Reasons for Sentence.

[6] See post, paragraph 22 and footnote 10.

[7] Appeal Bundle, pages 154 - 158.

[8] Appeal Bundle, pages 98m – 99Q.

[9] See, for example, the approach of this Court in HKSAR v Wong Chiu Mei CACC 505/2003 (13 October 2004, unreported) and HKSAR v Kulemesin Yuriy & three Others CACC 19/2010 (15 February 2012, unreported).

[10] See footnote 6.

[11] See R v Wong Kai Kong & Another [1990] 1 HKC 279.