HKSAR v. EUGENE WILLIAMS

CACC 230/2018

[2019] HKCA 559

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 230 OF 2018

(ON APPEAL FROM DCCC NO 917/2017)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.  The applicant, who was the 2^nd defendant in the trial below, was jointly charged with the 1^st and 3^rd defendants (D1 and D3), with the offence of conspiracy to obtain property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210 and sections 159A and 159C of the Crimes Ordinance, Cap 200. This was the 2^nd charge on the charge sheet. The 1^st charge was another charge of conspiracy to obtain property by deception which D3 alone faced but, as will become apparent, the facts of the 2 charges were closely connected.

2.  The applicant, D1 and D3 all pleaded guilty to their respective charges and were convicted on 5 June 2018 by District Judge K Lo (“the judge”).  The applicant was sentenced by the judge on 3 August 2018 to imprisonment for 2 years 7 months and 6 days.  D1 and D3 were each sentenced to 2 years 2 months’ imprisonment for the same charge.[1] 

3.  The applicant and D3 filed Notices of Application for Leave to Appeal (Form XI) against their sentences, but their applications were refused by Zervos JA on 4 January 2019.  The applicant subsequently renewed his application for leave to appeal his sentence by Notice of Renewal of Application after Refusal by the Single Judge (Form XIII) filed on 10 January 2019 but D3 did not do so.

4.  At the hearing of the application we refused it and dismissed the applicant’s appeal.  We also gave a loss of time direction of 8 weeks under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.  We said we would hand down our reasons for doing so at a later date.  These are our reasons.

The Summary of Facts

5.  In pleading guilty to their respective charges, the applicant, D1 and D3 all agreed to a Summary of Facts which was used for the purpose of their sentencing.

6.  The Summary of Facts revealed that in late September 2016, PW1 befriended on Facebook a person using the name of Catherine Sandra Foley.  Foley claimed to be Ghanaian and she persuaded PW1 to assist with the delivery of $12 million United States Dollars (USD) and 120 kg of gold in Hong Kong.  PW1 was offered 30% of the value of the delivered items for his assistance. 

7.  On 15 January 2017, PW1 was contacted by phone by a person using the name of Nancy who purported to be an officer of the British Consulate.  Nancy informed him that a person by the name of Williams Anthony, coincidentally the same surname as the applicant, had arrived in Hong Kong from Ghana with a box of USD currency, but this person was detained by Hong Kong Immigration Department. 

8.  On 17 January 2017 PW1 received a WhatsApp message from a person using the name of Dickson.  Dickson asked for HK$68,300 to enable the release of Williams and the box of currency.  They agreed to meet on 19 January 2017 and it was D3 who turned up at this meeting.  PW1 handed over $70,000 to D3.  That night Nancy called PW1 and told him to raise another HK$300,000.  The next day D3 met PW1 again and gave him a receipt for the HK$70,000. 

9.  On 24 January 2017 PW1 handed over HK$230,000 to D3.  Half an hour later Nancy called PW1 and told him there was a shortfall of HK$70,000 which was needed to redeem the USD currency.  The same day PW1 handed to D3 the further HK$70,000.  In return for this money D3 handed PW1 a red suitcase.

10.  PW1 took the red suitcase home only to find that it contained pieces of black paper that were the size of bank notes.  When PW1 enquired of D3 through WhatsApp, he was told that the pieces of paper were USD bank notes dyed in black for security reasons and they agreed to meet at a hotel.

11.  On 26 January 2017, PW1 attended a hotel to meet with D3.  He met D3 in the hotel lobby who then checked into a hotel room.  In the hotel room D3 demonstrated to PW1 how to remove the black dye on the pieces of paper by rubbing them with hand cream and a mixture of a transparent fluid and hot water.  This was done with ten pieces of paper, revealing ten USD bank notes.  D3 then told PW1 that more of the transparent fluid was needed and told PW1 to purchase it from Nancy.  D3 asked PW1 to leave the money with him.  PW1 then left the hotel, taking only 3 USD100 bank notes with him.

12.  On 27 January 2017 Nancy called PW1 in order to persuade him to buy more transparent fluid.  As PW1 had no money he declined Nancy’s offer.  On 28 January 2017 Nancy spoke to PW1 by telephone and told him that the red suitcase would be sent overseas unless it was redeemed by PW1 by a payment of HK$70,000. 

13.  On 6 March 2017, PW1 received WhatsApp messages from another phone number to attend a meeting at the General Post Office.  The phone from which these messages were sent was seized from D1 when he was later arrested.  In these messages, PW1 was told that the USD bank notes had been cleaned and that he had to pay USD5,000 for them.  On 7 March 2017, PW1 attended the General Post Office and met D1 and the applicant.  They all then went to the International Financial Centre, where PW1 gave D1 HK$4,000 cash in front of the applicant.  However, on this occasion PW1 was not given the USD bank notes.

14.  On 8 April 2017, PW1 attended another meeting which had been arranged for PW1 to pay a further HK$35,000 for the USD bank notes.[2]  By this time, PW1 had made a report to the police and when D1 and the applicant were seen approaching PW1, they were arrested.  As for D3, he was later arrested at the airport when he landed in Hong Kong on 11 April 2017.

15.  Mobile phones were seized from the applicant, D1 and D3.  It was found that some of the WhatsApp exchanges between D1’s phone and PW1’s phone had been forwarded from D1’s phone to the applicant’s phone and to D3’s phone.

The mitigation

16.  The applicant was born in 1978 in Liberia but presently holds a Mozambique passport.  He came to Hong Kong in 2010 and is a Form 8 recognizance holder.  He was unemployed at the time of his arrest. He had 5 previous convictions.  One was for drug trafficking, for which he was imprisoned for 12 months in August 2015 and the other 4 previous convictions related to using a false identity document and making a false representation to an immigration officer, for which he was sentenced to a total of 15 months’ imprisonment in May 2017.

17.  The applicant’s counsel submitted in mitigation that the applicant’s role was minimal, as he only accompanied D1 to collect the money and he received no monetary reward for doing so.

The judge’s Reasons for Sentence

18.  The judge noted that the maximum sentence for the offence of obtaining property by deception, on conviction on indictment, was 10 years’ imprisonment. 

19.  She referred to various authorities on street and telephone deception cases, where the sentencing starting point ranged from 3 years to 4 years’ imprisonment.

20.  The judge considered that the present case was similar to a sophisticated telephone deception case, with the fraud lasting a period of time and involving a gang of three with each taking a different and defined role in the organisation and commission of the offence.  WhatsApp messages between D1 and PW1, which had been forwarded from D1’s phone to the applicant’s phone and to D3’s phone, indicated that all three of them were acting in concert in the offence. 

21.  In relation to the 2^nd charge, the judge considered that the role of D1 and the applicant in confronting PW1 and collecting money from him was as important as D3’s role in demonstrating to PW1 how to clean the pieces of paper.  For this charge, the judge adopted a starting point of 3 years and 3 months’ imprisonment. 

22.  D1 and D3 gave a timely indication of their guilty pleas and were given a full one-third discount, so that they were each sentenced to 2 years and 2 months’ imprisonment.  However, as the applicant pleaded guilty only on the 1^st day of the trial, the judge awarded him a lesser discount of 20%, following HKSAR v Ngo Van Nam[3].  Consequently, the applicant’s sentence became 2 years 7 months and 6 days’ imprisonment.  The judge also ordered that the mobile phone seized from the applicant be forfeited.

The grounds of appeal against sentence

23.  In the applicant’s Form XI, he stated that the reason for appeal was that the sentence imposed on him is “too much for me”

24.  In letters attached to his Form XIII the applicant said that he did not have any involvement with the victim and did not get any money from him.  He said he was only present with D1 when D1 took HK$4,000 from PW1.  He said he only pleaded guilty because he was arrested by the police.

25.  In subsequent letters sent to the High Court dated 22 November 2018 and 7 March 2019 he compared his sentence with those of D1 and D3, who he argued were more involved in the fraud than he, and complained that he received a higher sentence than them.  He also complained of his phone being forfeited.

The respondent’s submissions

26.  Ms Elisa Cheng, for the respondent, pointed out that there was no specific sentencing tariff for a charge of obtaining property by deception.  She submitted each case was dependent on its own facts and as this case involved an extremely well-planned fraud with different persons playing a number of roles in it and there were continuing efforts to extract money from PW1 over a period of time, a starting point of 3 years and 3 months was appropriate.

27.  Although the applicant did not personally receive money from PW1, his presence when PW1 gave D1 HK$4,000, together with the WhatsApp messages exchanged between PW1 and D1 being forwarded to his phone, showed that he was actively involved with D1 and D3 in the deception.

28.  Given that the applicant only pleaded guilty on the 1^st day of trial, a discount of 20% was applicable.

29.  Ms Cheng also submitted that, despite the applicant being a Form 8 recognizance holder, the judge did not enhance his sentence.  It should have been enhanced as this case involved a type of fraud that affected Hong Kong’s international reputation.   

30.  As for the forfeiture of the applicant’s phone Ms Cheng submitted that given that the exchange of WhatsApp messages between PW1 and D1 were forwarded to his phone, there was evidence of the phone being used in the crime, and thus a basis for the forfeiture order, citing Hong Kong Archbold 2018 at paragraphs 5-435 to 5-444.  It was also pointed out that the applicant’s counsel did not object to the forfeiture order, relying on HKSAR v Valencia[4].

Discussion

31.  We cannot find any fault at all in the starting point adopted by the judge.  The conspiracy of which the applicant was convicted was a conspiracy to obtain USD5,000 by deception.  Given the size, duration and sophistication of this criminal enterprise the judge’s starting point cannot be said to be in any way excessive.

32.  For D1 and the applicant that starting point should have been enhanced as they were both Form 8 holders.  The applicant has benefited from a sentencing windfall and he should consider himself fortunate that his sentence was not longer.

33.  Nor can we find any reason to say that this applicant’s participation in the criminal enterprise was significantly less than his co‑conspirators.  This was a joint enterprise crime that involved each participant playing his assigned role.  The judge was perfectly entitled to conclude on the facts that the applicant’s role was important to the success of the criminal enterprise and that there was no basis for distinguishing the culpability of each of the participants in it.

34.  As to the reduced discount afforded the applicant for his plea of guilty, this is explained by the fact that it was not a timely plea, it having been entered only on the first day of trial.  As his plea of guilty was late he was only entitled to a 20% discount and this lesser discount accounts for the difference in his sentence from that of D1 and D3 who both received the full one third discount for a timely plea.

35.  The applicant’s phone was properly forfeited as it was an instrument that was used in the commission of the criminal enterprise.  

36.  As there is no merit in any of the applicant’s complaints we refused the applicant leave to appeal and dismissed his appeal.

Loss of time

37.  As there was no merit in any of the applicant’s complaints and as he had the benefit of a very detailed and carefully considered judgment from Zervos JA we invited the applicant to address us on why we should not give a loss of time direction under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.  In response the applicant in effect asked the court to exercise mercy towards him as his co-conspirators had already been released from custody, his role in the offence was much less than theirs and he was unwell and suffering in prison.

38.  This application was wholly devoid of merit and resulted in a serious waste of judicial resources.  The applicant was warned of the risk of a loss of time order by notes in both the Form XI, the Notice of Order of the Single Judge (Form XII) and Form XIII and by comment by Zervos JA.  He was aware that he had already received a sentencing windfall by not having his starting point enhanced for his Form 8 status as this was adverted to in both the submission of the respondent and the judgment of the leave judge.

39.  We were satisfied that this is an appropriate case for the giving of a loss of time direction and we assessed 8 weeks as the appropriate length of the direction. 

Disposition

40.  For these reasons, we refused the applicant leave to appeal and dismissed his appeal and directed, under section 83W(1) of the Criminal Procedure Ordinance, Cap 221 that 8 weeks of the time during which the applicant was in custody pending the determination of his appeal shall not be reckoned as part of the term of his sentence.