HKSAR v. MAK SHING

CACC 322/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 322 OF 2001

(ON APPEAL FROM DCCC 327 OF 2001)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant was convicted in the District Court after a trial before Deputy Judge Candy of three counts of dealing with property known or believed to represent the proceeds of an indictable offence contrary to section 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap. 455 (the Ordinance). He was sentenced to four years' imprisonment on each count and it was ordered that all of the sentences should be served concurrently.

2. The applicant seeks leave to appeal against the sentences imposed.

3. The facts were relatively straightforward. The applicant was approached by an acquaintance Tsang Wai and was informed that he and his friends had obtained a substantial sum of money being the proceeds of smuggling cigarettes in China.

4. The arrangement proposed was moneys should be paid into his account and shortly thereafter be withdrawn in cash and the proceeds be given to Mr Tsang.

5. The applicant agreed. He said that his wife's account and the account of one of his friends Kwong Tai-wai could be used for this purpose.

6. RMB14.56 million was received by Mr Tsang and his associates from China. In fact the moneys were the proceeds of a theft which had occurred in China.

7. The moneys referred to in the charges were paid into the accounts which had been referred to by the applicant. In round figures a million dollars cash was paid into the accounts referred to in the first and second charges and $500,000 into the account referred to in the third charge.

8. All the basic facts were agreed. The defence was confined to submissions that on the agreed facts the applicant could call in aid the saving provisions in section 25. The Judge did not accept that these applied to this applicant.

9. The Judge took what he considered to be a very serious view of these offences. He referred to the fact that the prevalence of offences of this nature had increased over recent years.

10. He adopted a starting point of five years and gave the applicant a discount of one year's imprisonment to reflect the fact that all the basic facts had been agreed.

11. Broadly speaking the five grounds of appeal can be summarised by stating that it is claimed that the starting point was too high. There was no evidence adduced that offences of this nature had become more prevalent and that insufficient account had been taken of the applicant's clear record.

12. There are no guidelines for offences of this nature. The reason for this being that the circumstances of each case may vary almost infinitely.

13. It is convenient to deal with the complaints that the starting point was too high and that the Judge had referred to the prevalence of these offences together.

14. The reason for this is that the Judge clearly considered that the prevalence of these offences required him to pass a deterrent sentence.

15. Mr Duncan, in the course of a most helpful submission, argued that there was no basis for saying that the offence had become prevalent and, further, that his client's legal advisers had been placed at a disadvantage when the Judge had referred to prevalence without affording them any opportunity to test the validity of that assertion by the Judge.

16. It did not appear to be self evident that this type of offence had become more prevalent in recent times. This being the case it would undoubtedly have been helpful if the Judge had indicated upon what basis he had concluded that this was so.

17. We accept that it will not always be the case that it would be necessary for a judge to give reasons why he thought an offence had become prevalent. There are a number of offences where this may be a matter of public knowledge. This however was not so in the present case. It may also be within a particular court's peculiar experience that an offence is prevalent, but where that is so, that is normally specifically said by the sentencer.

18. We are not aware that this type of case has become more prevalent in recent times. This being the case we do not think that the Judge should have relied upon this as supporting his view that deterrence was required unless he had evidence in support of this and he had given the defendant the opportunity of making submissions thereon; or unless prevalence was within his court's peculiar experience, but there is no reason here to suppose that that was so.

19. We also accept that there is considerable merit in Mr Duncan's submission that the Judge appears not to have taken into account at all the applicant's previous good character. There is nothing in the Reasons for Sentence to indicate that he had.

20. The applicant who is in his early 40's came to Hong Kong from the Mainland in 1976. He had been in continuous employment since then and had started a business trading in seafoods. He supported a family which included a grown up daughter and son who were financially dependent upon him. He had never before been in any trouble.

21. A further factor which needed to be taken into account related to the circumstances of this case.

22. The applicant accepted that he had succumbed momentarily to temptation and that the offences were serious.

23. After committing these offences he had gone to the Mainland. He had learnt from his wife that the police were making inquiries and he voluntarily went to the police and provided them with particulars of what had transpired. This would seem to give some indication of the sort of person the applicant is.

24. We are satisfied that to a considerable extent sentencing is an art. In arriving at an appropriate sentence it is essential in most cases to bear in mind the personal characteristics of the person being sentenced.

25. We accept that for certain types of offence of a very serious nature it will often be the case that the personal characteristics of a defendant will not weigh in the balance at all. This was not such a case.

26. Having said all of this we fully accept that this was a serious case and the Judge was justified in imposing a sentence which would discourage others from doing the same thing.

27. It also has to be borne in mind that there was an international element to the offences and that Hong Kong has to take a very serious view of such matters if its international reputation is not to be sullied.

28. Bearing all of this in mind we have come to the conclusion that the starting point adopted by the Judge was manifestly excessive.

29. In our view a starting point of four years' imprisonment would have been sufficient to reflect the seriousness of these offences. We are also of the view that the applicant was entitled to a significant discount by virtue of the fact that his defence was confined to legal arguments as to whether he could avail himself of the saving provision in section 25. A discount of one year for this is appropriate.

30. We allow the application.

31. Treating it as the appeal we order that sentences of three years' imprisonment on each of these charges to be served concurrently be substituted for the sentences of four years. The total sentence to be served is three years' imprisonment. To this extent the appeal is allowed.