HKSAR v. TO KAI WAH

CACC 105/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 105 OF 2000

(ON APPEAL FROM DCCC NO. 659 OF 1999)

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J U D G M E N T

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Wong JA: (giving the judgment of the court)

1. The applicant To Kai Wah pleaded guilty before Deputy Judge Tallentire in the District Court to one charge of conspiracy to defraud and seven charges of furnishing false information contrary to section 19(1)(b) of the Theft Ordinance. The judge sentenced him to 3 years imprisonment on each charge to be served concurrently and the applicant now applies for leave to appeal against the sentences out of time. We agreed to hear the application de bene esse as we thought that there might be something on the point of giving assistance to the police. As it turned out, there is nothing in it.

2. The facts were succinctly summarized by the judge in his Reasons for Sentence. In 1992, the applicant met Miss Wong Hang-ping and in 1993 he was introduced to Yip Chun Kwok and Wong King David, two of the co-accused in this case. Yip and Wong set up a company called Golden Base which was to manufacture cigarettes in the Mainland. The applicant invested in that company. At the same time the applicant was also a co-director with his brother in a company called Evergrand. Golden Base was short of funds at this time. The applicant wanted to remedy the situation. The applicant, Yip and Wong persuaded Miss Wong to invest in the company. She agreed and executed legal charges on two of her properties to provide credit facilities to Golden Base and Evergrand. After banking facilities were granted, the applicant, Yip and Wong King presented fictitious documents to the banks in order to make bogus transactions looked genuine. The funds obtained were applied to Golden Base towards the cigarette manufacturing business. The total amount involved in the letters of credit transaction was in the region of $7.8 million. Miss Wong lost her two properties when the banks foreclosed.

3. In passing sentence, the judge noted the applicant's clear record and the money was never intended to be channeled into his own pocket. But he observed at the same time that the offences were a large scale and well-planned scheme of fraudulent misconduct. It was well executed. The judge took a starting point of 4 1/2 years and reduced this by one-third to 3 years on account of the applicant's plea of guilty. He made all the sentences to run concurrently to reflect the overall criminality which he described all eight offences as forming one course of conduct to fund a legitimate business by illegal means.

4. The sole ground of appeal is that the sentence of 3 years imposed on the applicant was manifestly excessive and/or wrong in principle.

5. Mr Grounds, who appears for the applicant before us, submits, firstly the applicant's cooperation with the police went beyond cooperation in the normal sense because he gave written witness statements to the police in April this year in which he implicated the two co-accused, Yip and Wong King.

6. We have now been told what actually happened was this. In December, the applicant told the police that he was not going to become a prosecution witness because he could not remember events clearly due to lapse of memory. As a result, a decision by the authorities not to prosecute Yip and Wong King was made. The mere fact of providing the police with statements and at the same time was unwilling to back them up in Court is not the kind of assistance that deserves additional discount.

7. Before sentencing, the judge was told that the applicant was willing to give further assistance to the police and by this we take it to mean that he would give evidence as a prosecution witness. This has turned out not to be the case.

8. In our view, the judge was right to reject the plea for additional discount which would only be justified if the applicant gave evidence for the prosecution if charges were brought against the two co-accused.

9. The next point that Mr Grounds argues before us is in relation to the starting point. He submits that it should have been 3 1/2 years to 4 years instead of 4 1/2 years. If a starting point of 4 years has been adopted the resultant sentence would be 2 years and 9 months, a difference of 3 months. We disagree with this submission. If we are going to take this course, it would be tinkering with what is otherwise a proper sentence.

10. We have also considered the cases which Mr Grounds cited to us and the other matters Mr Grounds raised in his written grounds of appeal. We find the cases unhelpful and the other grounds without substance.

11. In our view, the starting point of 4 1/2 years in the circumstances of this case is a proper one and the sentence of 3 years imposed in the applicant after the one third discount is neither manifestly excessive nor wrong in principle. The application is dismissed.