Case Detail

CACC 504/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 504 OF 2001

(ON APPEAL FROM DCCC NO. 1184 OF 2000)

____________

BETWEEN
	HKSAR	Respondent
and
	TSANG CHIU CHUEN (曾照銓) (D6)	1st Applicant
	LAI WING LEE (黎詠莉) (D7)	2nd Applicant
____________

Before: Hon McWalters JA and D. Pang J in Court

Date of Hearing: 26 September 2014

Date of Judgment: 26 September 2014

_______________

J U D G M E N T

_______________

Hon McWalters JA (giving the judgment of the Court):

Introduction

1. The applicants, to whom I will refer by their numerical designation as defendants at trial, seek leave to appeal against their sentences almost 13 years out of time.

2. The 1^st applicant was the 6^th defendant and the 2^nd applicant was the 7^th defendant in a District Court criminal trial, in which they were charged with nine other defendants with Conspiracy to Defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200 (Charge 1). The period of the conspiracy was between 1 September 1998 and 16 May 1999. They and five of the other defendants were also charged with failing to comply with an order of the Court of First Instance made under section 4(2) of the Organized and Serious Crimes Ordinance, Cap 455 and contrary to section 4(13) of the same Ordinance (Charge 2).

3. On 20 February 2001, the 11 defendants were required to attend court but the 6^th and 8^th defendants did not appear. There was a subsequent court appearance on 23 March 2001 and this time the 4^th, 5^th and 7^th defendants did not appear. The trial of the remaining defendants took place in August 2001, and it was conducted in the absence of the absconding 6^th and 7^th defendants.

4. On 22 October 2001, District Judge Christie (“the judge”) convicted both the 6^th and 7^th defendants of Charge 1 but acquitted them of Charge 2. On 30 October 2001, the judge sentenced both defendants in their absence. The 6^th defendant he sentenced to 5 years and 5 months’ imprisonment having adopted a starting point for sentence of 4 years and 4 months and enhanced it by 25% on the basis of prevalence. The 7^th defendant he sentenced to 4 years and 5 months’ imprisonment but as she had previously been sentenced to 3 years and 8 months’ imprisonment for a similar offence he ordered that 2 years and 3 months of the sentence he imposed be served consecutively to her existing sentence thus making a total sentence for her of 5 years 11 months. In reaching this sentence for the 7^th defendant the judge also made use of his power to enhance the sentence for which he was sentencing her.

5. The 6^th defendant surrendered to the Hong Kong Police on 9 December 2013 and the 7^th defendant on 21 January 2014.

6. They both subsequently applied for an extension of time in which to apply for leave to appeal their sentences.

The Background to the Offence

7. The case involved a particular type of fraud that was prevalent in the 1990s and which became known as Loco-London gold and silver fraud. The following description of the circumstances of the offence is taken from the judgment of Cheung JA in HKSAR v Chung Chi King CACC 504/2001; unreported, 4 March 2003, where the Court was dealing with an applicant who was the 4^th defendant in the trial of this case:

“7 … It was the prosecution’s case that on 2 November 1998, the police, after having received complaints about its activities, raided Champion Market Ltd (“Champion”). Champion purported to be a genuine gold and silver bullion trading company. Champion recruited its victims as junior office employees through newspaper advertisements. Most were offered and took part-time employment. None had any experience in bullion trading and all appear to have been selected because of their apparent naivety. On their offer of employment by Champion, they were offered an attractive salary. The victim was placed to work in a room with two fellow workers who, needless to say, were both parties to the fraud. One claimed to be newly recruited; the other claimed to be more experienced in the Champion’s work and to have opened his own trading account, trading in gold and silver successfully.
8. Under pressure from his newfound colleagues who spoke of the boundless opportunities for him to make easy money from a foolproof scheme, the victim was induced to open his own trading account, making investments in cash. His more experienced colleague claimed that he would teach the victim how to operate his account. To buoy his confidence the victim was given receipts for his investment. A few days later, Champion’s manager would claim that the victim had made a trading mistake that had resulted in him making a loss. He was required to pay Champion further sums of money in order to recover his original investment. If he did so, a few days later he was told that due to his further trading mistakes all of his money had been lost. The victim would then either leave Champion in desperation or was dismissed, being of no further use to the fraudsters.
9. In the course of the trial, the names of the ‘colleagues’ and ‘teachers’ appeared and reappeared in the evidence of 33 victims, who were called to give evidence of their experiences while with Champion over the period of the conspiracy.
10. Expert evidence from a certified public accountant and a member of the Chinese Gold & Silver Society in Hong Kong supported the prosecution’s case that Champion was not a genuine bullion trading company.
11. There was abundant evidence that Champion’s activities carried on unabated after the day of the police raid.”

8. Evidence revealed that in carrying out the fraud the 6^th defendant played the role of manager but his actual role in the execution of the conspiracy was not known. Five prosecution witnesses testified that they had dealings with the 6^th defendant and they had lost a total of $886,500. Four of them identified him at an identification parade.

9. As for the 7^th defendant, three prosecution witnesses described her as their teacher who provided them with examples of successful trading on her own account in order to persuade them to invest as well. She guided them in making “trading decisions” from which they were later told they had lost their investment. All these witnesses identified her at an identification parade.

The Reasons for Sentence

10. In passing sentence, the judge referred to HKSAR v Sam Wai Keung CACC 226/1999; unreported, 10 September 1999, in which this Court held that in arriving at a starting point for this offence, no particular attention should be paid to the acting role played by the defendant in question. A starting point of 4 years’ imprisonment was considered proper unless it was found that the defendant in question had played a part in the planning, financing or execution of the conspiracy; then the starting point for sentence should be higher. However, the judge also noted that this Court said in HKSAR v Chiang Chun Wai and anor CACC 11/2001; unreported, 12 October 2001, that where participants in a fraud such as this continued with the fraud after their operation has been raided by the police, then such persistence should be regarded as an aggravating feature.

11. In respect of the 6^th defendant the judge adopted a starting point for sentence of 4 years and 4 months’ imprisonment. The additional 4 months’ imprisonment was imposed to reflect the 6^th defendant’s continued participation in the fraud after the police raid.

12. In respect of the 7^th defendant, the judge took a starting point of 4 years’ imprisonment which he did not increase since she was apparently only present for a short time after the police raid on 2 November 1998.

13. On the prosecution’s application for enhancing the sentence, the judge had this to say:

“… it was apparent from the police raid of 2 November that a large number of victims made investments with the fraudulent company Champion Market Limited but never made complaints to the police. There were at least 10 persons who had paid money; another 14, at least, who were there as employees but had not yet paid any money, and there were receipts for money having been received found at the premises for over $800,000, most of which had not been paid by any of the witnesses who complained to the police and gave evidence in this trial. This shows that the scale of the fraud was higher than indicated by the losses of the witnesses who were called in the trial.
The prosecution applied under s 27(2) Organized and Serious Crimes Ordinance, Cap. 455, for enhanced sentences under s 27(11). It has furnished information under s 27(2) in the form of a statement by Inspector Chan … The statement shows, according to the number of victims who reported to the police, that the offence peaked in 1999. Although reports of this fraud have dropped since it has to be said that they are still prevalent. Prevalence of the offence is one of the matters referred to in subsection (2) which I may take into account in deciding whether to make an enhanced sentence and it was not taken into account in the fixing of the 4 year sentencing tariff which I have referred to. I therefore think it right to exercise my discretion to enhance the sentence to take into account the prevalence of this offence.
As to the procedure to be followed once that decision is taken, this is outlined by the Court of Appeal in HKSAR v Tam Wai-pio [1998] 2 HKLRD 949.”

14. In respect of the 7^th defendant, the judge was aware that she had, on 2 May 2001, also after a trial in her absence, been convicted of the same kind of fraud as in this case and sentenced to a term of 3 years and 8 months’ imprisonment by Deputy Judge Browne, as he then was, in another District Court Criminal trial, namely DCCC 432/2000.

15. In the present case, the judge adopted a starting point for sentence of 4 years’ imprisonment. He then considered totality of sentence in this case and that of DCCC 432/2000, and concluded that the appropriate totality for the two offences was 5 years and 6 months’ imprisonment. The 1 year and 10 months difference between the existing 3 years and 8 months and 5 years 6 months sentences he then enhanced by 25% ie 5 months on the basis of prevalence. It meant that the 7^th defendant’s sentence for the present offence became 4 years and 5 months’ imprisonment. The judge then ordered that 2 years and 3 months of the term of 4 years and 5 months’ imprisonment was to run consecutively to the term of 3 years and 8 months’ imprisonment of DCCC 432/2000, thereby making a total of 5 years and 11 months’ imprisonment.

The Application for an Extension of Time

16. The 6^th and 7^th defendants filed with the Court an application for leave to appeal against sentence out of time by way of Form XI of the Criminal Appeal Rules, Cap 221 dated 24 December 2013 and 26 February 2014 respectively. In an accompanying affirmation, the 6^th defendant explained the delay for making the application. He said that he had absconded from Hong Kong when the sentence was passed on him in 2000, and that his co-defendants, namely the 3^rd and the 4^th defendants had successfully appealed against their sentences.

17. In respect of the 7^th defendant, she explained in her affirmation that her parents were old and suffered from chronic disease. As such, she had to stay home to take care of them. At present, her younger sister is able to look after her parents. She then decided to surrender to the police so as to bear the responsibility for what she had done wrong.

The Ground of Appeal

18. On their behalf, Mr Luk King-wang, Counsel assigned by the Director of Legal Aid, advanced a single ground of appeal against sentence, namely that the judge had wrongly enhanced their sentences by 25% on the basis of prevalence, thereby resulting in their sentences being manifestly excessive. Mr Luk relied upon the judgments of this Court (differently constituted) when it heard the appeals against sentence of the 3^rd and the 4^th defendants.

19. In HKSAR v Chung Chi King CACC 504/2001; unreported, 4 March 2003, the appeal of the 4^th defendant, Cheung JA, giving the judgment of the Court, said on the issue of enhancement:

“19. The judge enhanced the sentence because he considered that this type of fraud was prevalent. The evidence produced by the prosecution under section 27(2) showed the statistics of this type of fraud from 1997 to 2001. The number of victims in 1997 was 129. The amount involved was $35,640,000.00. The offence peaked in 1999. Then the number of victims declined drastically from 710 in 1999 with money involving HK$158,000,000.00 to 41 victims up to August 2001 with money involving HK$14,600,000.00. There was clearly a substantial reduction in the number of victims and also in the amount lost by victims by August 2001. It cannot be said that an offence of this type was so prevalent at the time of the sentence in October 2001 that it would require the Court to enhance the sentence as a means of deterrence.
20. The judge was wrong to enhance the sentence on the basis of prevalence.”

20. Likewise, in HKSAR v Yung Chi Lok CACC 504/2001; unreported, 26 February 2009, the appeal of the 3^rd defendant, Stock JA (as he then was) giving the judgment of the Court, addressed the issue of granting an extension of time in the circumstances of an absconding defendant who subsequently seeks to benefit from the successful appeal of a co‑accused:

“11. Only rare circumstances would warrant an extension of time so long after sentence. The matter upon which the applicant relies is that a co-defendant, who was D4 at trial, successfully appealed against sentence on the basis that the judge erred in principle in enhancing sentence because of a supposed prevalence of the offence at the date of sentencing. D4 was the appellant in HKSAR v Chung Chi King CACC 504 of 2001, 4 March 2003, unreported. That Court examined the figures for the particular type of fraud, known as Loco London gold and silver fraud, between 1997 and 2001 and concluded that after the offence had “peaked” in 1999 the numbers declined significantly thereafter and that “there was clearly a substantial reduction in the number of victims and also in the amount lost by victims by August 2001. It cannot be said that an offence of this type was so prevalent at the time of the sentence in October 2001 that it would require the Court to enhance the sentence as a means of deterrence”.
12. Where there has been an error of principle of this type and which, in addition, has been recognized in favour of a co‑defendant, a sufficiently exceptional circumstance is made out to warrant an extension of time in which to apply for leave and, accordingly, we grant that extension.”

Discussion

21. In light of these decisions Miss Vivien Chan, Counsel for the respondent, has very fairly and properly conceded that the extensions of time sought by the 6^th and 7^th defendants should be granted as the sentences imposed on the them should not have been enhanced. Ms Chan accepts that this Court should reduce the sentence of the 6^th defendant to 4 years and 4 months’ imprisonment, and the sentence of the 7^th defendant to 4 years’ imprisonment.

22. That, of course, still leaves the question of the appropriate totality for the 7^th defendant. Having identified error by the judge in his sentencing of this defendant, she now falls to be sentenced afresh by this Court.

23. The sentence imposed by Deputy Judge Browne was 3 years and 8 months’ imprisonment. The pre-enhancement sentence proposed by the judge in the present case was 4 years’ imprisonment. This made a total for the two offences of 7 years 8 months’ imprisonment. The judge correctly recognised that such a sentence would offend the totality principle. In his view the appropriate total sentence for the two offences was 5½ years’ imprisonment and this is what he would have imposed had he not enhanced the sentence for the current offence.

24. The 7^th defendant’s two offences overlapped significantly. The charge period for the current offence was 1 September 1998 to 16 May 1999. The charge period for the offence for which Deputy Judge Browne sentenced the 7^th defendant was 1 May 1998 to 7 December 1999. Extraordinarily, the 7^th defendant was participating in two Loco-London frauds at the same time.

25. We are satisfied that the Judge was correct in his assessment that 5½ years’ imprisonment was an appropriate sentence for this offender’s overall culpability.

Conclusion

26. For these reasons we grant the application for an extension of time in which to apply for leave to appeal against sentence and treating the application of leave to appeal as the hearing of the appeal, allow the appeal. We set aside the sentences imposed by the judge and in substitution for them impose sentences of 4 years 4 months’ imprisonment on the 6^th defendant and 4 years’ imprisonment on the 7^th defendant. We further order in respect of the 7^th defendant that 1 year 10 months of this sentence be served consecutively to the sentence imposed by Deputy Judge Browne.

(Ian McWalters)
Justice of Appeal

(Derek Pang)
Judge of the
Court of First Instance

Ms Vivien Chan SPP, of the Department of Justice, for the respondent

Mr Luk King-wang, instructed by Kevin Ng & Co., assigned by DLA, for the applicants

CACC 504/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 504 OF 2001

(ON APPEAL FROM DCCC NO. 1184 OF 2000)

----------------------

BETWEEN
	HKSAR	Respondent
	and
	YUNG CHI LOK 翁子樂	Applicant

----------------------

Before : Hon Stock JA and Wright J in Court

Date of Hearing : 26 February 2009

Date of Judgment : 26 February 2009

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J U D G M E N T

----------------------

Hon Stock JA (giving the judgment of the Court) :

1. On 30 October 2001, this applicant was sentenced by Judge Christie in the District Court to a term of seven years imprisonment for two offences. He now seeks leave to appeal against the sentence imposed for one of those offences.

2. The first charge was conspiracy to defraud. The applicant was the third defendant amongst eleven. It was alleged that they conspired to defraud persons who were induced to give them money upon a false representation that the defendants were conducting a genuine business in the name of a company known as Champion Market purportedly trading in silver and gold. Advertisements were placed which attracted innocent members of the public to seek and obtain employment with the company for routine jobs as office assistants or cleaners but, once in place, they were lured into making investments in trades that never took place and consequently lost substantial sums of money.

3. The guile used and the cruelty visited upon innocents was calculated and prolonged. The scheme commenced in September 1998. On 2 November 1998, the police raided the premises and the applicant admitted to them that he was the person in charge. He occupied the manager’s office and in addition to overseeing the operation he also managed various teams and actively engaged with individual victims to defraud them of monies. The police raid made no difference to him for, with some of the others, he continued the fraud after that raid. The judge found that he was the person in charge from September 1998 to April 1999.

4. This applicant was on bail pending trial and, after one of the pre-trial reviews, he absconded and the trial took place in his absence.

5. He was convicted. The judge found that he presided over losses exceeding $7 million although the judge was satisfied that even a larger amount had been lost by victims who did not report to the police.

6. The judge took a starting point of five years imprisonment and increased that to six years to give effect to the aggravating factor constituted by the applicant continuing the fraud after the police raid. He reduced that total by six months to give effect to what he viewed as the mitigating factor of the applicant’s previous good character. He then enhanced that sentence by 25% on account of the suggested prevalence of the offence, applying s.27 of the Organized and Serious Crimes Ordinance, Cap 455. This resulted in a sentence on charge 1 of 6 years 10 months imprisonment.

7. There was a second charge. This alleged against the first seven defendants failure to comply with an order of the High Court made under s.4(2) of the Organized and Serious Crimes Ordinance to produce certain documents to the police. This applicant was the only one of those seven who was convicted of this offence. In this regard, the judge fixed the sentence of two months imprisonment “lest I exceed my jurisdiction”. The maximum term of imprisonment available for this offence is 12 months imprisonment.

8. On 13 October 2008 the applicant surrendered to the police. He says in an affirmation that he had come to the conclusion that he could not spend the rest of his life running from the authorities.

9. His application for leave to appeal against the sentence is dated 22 October 2008 and it is directed at the sentence in respect of the first charge only.

10. It will readily be apparent that the application is made substantially out of time and, accordingly, the applicant seeks an extension of time in which to make his application.

11. Only rare circumstances would warrant an extension of time so long after sentence. The matter upon which the applicant relies is that a co-defendant, who was D4 at trial, successfully appealed against sentence on the basis that the judge erred in principle in enhancing sentence because of a supposed prevalence of the offence at the date of sentencing. D4 was the appellant in HKSAR v Chung Chi King CACC 504 of 2001, 4 March 2003, unreported. That Court examined the figures for the particular type of fraud, known as Loco London gold and silver fraud, between 1997 and 2001 and concluded that after the offence had “peaked” in 1999 the numbers declined significantly thereafter and that “there was clearly a substantial reduction in the number of victims and also in the amount lost by victims by August 2001. It cannot be said that an offence of this type was so prevalent at the time of the sentence in October 2001 that it would require the Court to enhance the sentence as a means of deterrence”.

12. Where there has been an error of principle of this type and which, in addition, has been recognized in favour of a co-defendant, a sufficiently exceptional circumstance is made out to warrant an extension of time in which to apply for leave and, accordingly, we grant that extension.

13. We are surprised that the judge accorded a discount in sentence on account of the applicant’s supposed previous good character. This was hardly a spontaneous offence committed on an isolated occasion such that it might be categorized as out of character. It was carefully planned, and innocent persons were swindled day in, day out after a prolonged period, and a police raid brushed off as of no consequence. This was decidedly not an appropriate case in which to treat the absence of previous convictions as a mitigating factor. But for the fact that two other defendants in the same case were given credit by the same judge for the absence of prior convictions, we would, in the reassessment occasioned by the enhancement error, have accorded no such discount.

14. In the event, we grant the applicant leave to appeal against sentence and treating the hearing of the application as the appeal, we allow the appeal in relation to the sentence on the first charge, set aside the term of 6 years 10 months and substitute therefore a term of 5 and a half years imprisonment, which is the term the judge would have imposed but for the enhancement.

15. Although the appellant does not expressly seek leave to appeal against the sentence in relation to the second charge, it is open to this Court, by reason of s.83I of the Criminal Procedure Ordinance, Cap 221, to treat the application for leave in relation to the first charge as an application in respect of both charges.

16. By an order dated 1 June 2000, Bokhary J ordered the appellant, and others, to produce within seven days all accounting records of Champion Market since its inception including financial statements, bank statements, cash movement records, accounting ledgers, records of expenses, and other documents prepared or kept by the company. That order was simply ignored and the appellant was duly convicted of failing to comply with that order, an offence contrary to s.4(13) of the Organised and Serious Crimes Ordinance.

17. The sentence of two months imprisonment imposed in respect of that charge was, with respect, entirely inadequate. In imposing that sentence merely to ensure that the judge did not exceed the sentencing jurisdiction of the District Court, he erred in principle in the manner in which he proceeded. It is fundamental that a sentence passed for an offence must be appropriate to the circumstances of the offence itself and if an adjustment is to be made to the totality, whether for the reason given by the judge or for any other appropriate reason, then that adjustment should be made, not by tampering with the appropriate sentence for the offence, but by ordering the sentences to run partially or wholly concurrent, as may be apt.

18. Mr Ng, for the applicant, suggested that charge 2 added nothing in that the documents sought went only to establish whether the company was genuine or not. That, to a limited extent, may be so, but nonetheless the failure to produce documents was itself quite deliberate and a separate offence and, secondly, some of the documents which no doubt the company had – and we see from the exhibits that documents were seized - would disclose or might have disclosed the extent of the fraud and the identity of some victims.

19. In our judgment, an appropriate sentence in respect of charge 2, after trial, was in this case one of 10 months imprisonment. We set aside the sentence of two months imprisonment imposed and substitute therefore a sentence of 10 months imprisonment. We order that sentence to run consecutively to the sentence of 5½ years imprisonment in relation to the first charge, making a total of six years four months imprisonment.

(Frank Stock)	(A.R. Wright)
Justice of Appeal	Judge of the Court of First Instance

Mr Ng Man Sang Alan instructed by Messrs Peter K H Wong & Co, assigned by Director of Legal Aid for the Applicant

Mr John Reading, SC, DPP and Miss Hermina Ng, PP of Department of Justice for the Respondent

CACC000504A/2001

CACC 504/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 504 OF 2001

(ON APPEAL FROM DCCC NO. 1184 OF 2000)

____________________________

BETWEEN
	HKSAR	Respondent

	AND

	CHUNG CHI KING	Applicant

____________________________

CACC 361/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 361 OF 2002

(ON APPEAL FROM DCCC NO. 383 OF 2002)

____________________________

BETWEEN
	HKSAR	Respondent

	AND

	CHUNG CHI KING	Applicant

____________________________

Coram: Hon Stock JA, Hon Cheung JA and Hon Gall J in Court

Date of Hearing: 4 March 2003

Date of Judgment: 4 March 2003

____________________________

J U D G M E N T

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Hon. Cheung J.A. (giving the judgment of the Court):

Appeal against sentence

1. The applicant was separately charged and convicted in two District Court criminal trials. In the first criminal trial, namely District Court Criminal Case No. 1184 of 2000 ("the first case"), the applicant together with other defendants were convicted of the offence of conspiracy to defraud. The trial was conducted in his absence. He had absconded before trial. He was sentenced to five years and ten months' imprisonment. The sentence was imposed on 30 October 2001.

2. In the second criminal trial, namely District Court Criminal Case No. 383 of 2002 ("the second case"), the applicant was charged with two offences. The first was conspiracy to defraud. The second was failing to surrender to custody, contrary to section 9L(1) of the Criminal Procedure Ordinance Cap. 221. He pleaded guilty to both offences.

3. On the first offence in the second case, he was sentenced to four years and two months' imprisonment. On the second offence, he was sentenced to two months' imprisonment. One month of the second sentence was ordered to run concurrently with that of the first offence and the remaining one month consecutively.

4. Since the applicant was then serving his earlier sentence of five years and ten months' imprisonment under the first case it was ordered that one year and three months of the sentence in the second case was to be served concurrently with the earlier sentence, while the remaining three years was to be served consecutively. In other words, the applicant has to serve a sentence of eight years and ten months for the two cases. The second sentence was imposed on 2 July 2002, the applicant having surrendered himself to the police on 20 March 2002.

5. The applicant now seeks leave to appeal against the sentences imposed on him in these two cases. Extension of time to appeal is sought in the first case. The reason for the delay was that he was waiting to see what the sentence was to be in the second case. He hoped that it would be a concurrent one.

The first case

6. The period of conspiracy in the first case was between 1 September 1998 and 16 May 1999. This Court had on 16 May 2002 considered another appeal from one of the defendants in the first case, namely Chung Chi Kin, the ninth defendant, who was the brother of the applicant. The appeal was dismissed. The facts of the case was summarized by Lugar-Mawson J. We will respectfully adopt the summary of facts.

The facts

7. The case involved a Loco-London gold and silver fraud. It was the prosecution's case that on 2 November 1998, the police, after having received complaints about its activities, raided Champion Market Ltd. ("Champion"). Champion purported to be a genuine gold and silver bullion trading company. Champion recruited its victims as junior office employees through newspaper advertisements. Most were offered and took part-time employment. None had any experience in bullion trading and all appeared to have been selected because of their apparent naivety. On their offer of employment by Champion, they were offered an attractive salary. The victim was placed to work in a room with two fellow workers who, needless to say, were both parties to the fraud. One claimed to be newly recruited; the other claimed to be more experienced in the Champion's work and to have opened his own trading account, trading in gold and silver successful.

8. Under pressure from his newfound colleagues who spoke of the boundless opportunities for him to make easy money from a foolproof scheme, the victim was induced to open his own trading account, making investments in cash. His more experienced colleague claimed that he would teach the victim how to operate his account. To buoy his confidence the victim was given receipts for his investment. A few days later, Champion's manager would claim that the victim had made a trading mistake that had resulted in him making a loss. He was required to pay Champion further sums of money in order to recover his original investment. If he did so, a few days later still he was told that due to his further trading mistakes all of his money had been lost. The victim would then either leave Champion in desperation or was dismissed, being of no further use to the fraudsters.

9. In the course of the trial, the names of the 'colleagues' and 'teachers' appeared and reappeared in the evidence of 33 victims, who were called to give evidence of their experiences while with Champion over the period of conspiracy.

10. Expert evidence from a certified public accountant and a member of the Chinese Gold & Silver Society in Hong Kong supported the prosecution's case that Champion was not a genuine bullion trading company.

11. There was abundant evidence that Champion's activities carried on unabated after the day of the police raid.

Enhancement

12. The only reason advanced against the sentence under the first case is that the judge had wrongly enhanced the sentence. The trial judge used a starting point of four years and eight months' imprisonment. At the invitation of the prosecution, the judge enhanced the sentence by 25% i.e. one year and two months under section 27(11) of the Organized and Serious Crimes Ordinance ("the Ordinance") Cap. 455. The total sentence came to five years and ten months.

13. Under section 27(11), the Court may enhance the sentence on either one of two basis. First, the offence is a specified offence and that it is an organized crime. Second, based on the information furnished under subsection (2) or (8).

14. A specified offence is one of the offences set out in Schedule 1 or 2 of the Ordinance. Conspiracy to defraud is one of the offences stated in Schedule 2. It is, therefore, a specified offence. Organized crime means a Schedule 1 offence that :

“(a)
is connected with the activities of a particular triad society;
(b)
is related to the activities of two or more persons associated together solely or partly for the purpose of committing two or more acts, each of which is a Schedule 1 offence and involves substantial planning and organization; or
(c)
is committed by two or more persons, involves substantial planning and organization and involves-
(i) loss of the life of any person, or a substantial risk of such a loss;
(ii) serious bodily or psychological harm to any person, or a substantial risk of such harm; or
(iii) serious loss of liberty of any person."

15. Since a conspiracy to defraud is not an offence stated in Schedule 1, therefore, despite the fact that it was a specified offence it could not be an organized crime. Hence, any enhancement of the sentence cannot come within the first limb of subsection (11).

16. In respect of the second basis, the information contained in section 27(2) are :

“(a) the nature and extent of any harm caused, directly or indirectly, to any person by the act in respect of which the person has been so convicted;
(b)
the nature and extent of any benefit, whether financial or otherwise, that accrued or was intended to accrue, directly or indirectly, to that or any other person from that act;
(c)
the prevalence of that specified offence;
(d)
the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of that specified offence;
(e)
the nature and extent of the total benefit, whether financial or otherwise, accruing directly or indirectly to any person from recent occurrences of that specified offence."

17. In relation to section 27(8), if the court determines that a specified offence was an organized crime by reason of its connection with the activities of a triad society, the prosecution may furnish information to the court regarding the nature and extent of those activities and the way in which the offence was connected with those activities.

18. Since the offence is not an organised crime, therefore section 27(8) is irrelevant for the purpose of this case.

Wrong enhancement

19. The judge enhanced the sentence because he considered that this type of fraud was prevalent. The evidence produced by the prosecution under section 27(2) showed the statistics of this type of fraud from 1997 to 2001. The number of victims in 1997 was 129. The amount involved was $35,640,000.00. The offence peaked in 1999. Then the number of victims declined drastically from 710 in 1999 with money involving HK$158,000,000.00 to 41 victims up to August 2001 with money involving HK$14,600,000.00. There was clearly a substantial reduction in the number of victims and also in the amount lost by victims by August 2001. It cannot be said that an offence of this type was so prevalent at the time of the sentence in October 2001 that it would require the Court to enhance the sentence as a means of deterrence.

20. The judge was wrong to enhance the sentence on the basis of prevalence.

Seabrook

21. Mr. Reading S.C., counsel for the respondent, referred to the decision of Seabrook v. HKSAR [1999] 1 HKC 567 in which the Court of Final Appeal laid down the principles on how a sentencing guideline that reduced sentence could benefit those defendants who were sentenced before the guideline was introduced. It was held that they would be benefited provided that :

1) their offences were committed at a time when the state of affairs on which the guideline was based was in existence;
2) their sentences were imposed at a higher level than those set by the guideline; and
3) the sentencing process was still extant.

In relation to the last requirement it means that the appeal period had not yet expired.

Wong Fung Ming

22. In HKSAR v. Wong Fung Ming (CACC No. 515 of 2001), this Court on 5 December 2002 allowed an appeal against sentence in a similar case. The trial judge had enhanced the sentence when the statistics showed that the fraud had decreased since 1999. This Court held that the enhancement was incorrect. In the present case, the applicant was seeking to appeal out of time. The appeal period had expired. Therefore, it is argued that the applicant cannot take advantage of the guideline stated in Wong Fung Ming.

23. In our view, what this Court said in Wong Fung Ming cannot be treated as a sentencing guideline envisaged in Seabrook which was a case dealing with the tariff of sentence for drug offences. Ultimately, in this case it is a question of interpreting the statistics to see whether crime of this nature was prevalent at the time of the sentence. If there was such a substantial drop in the number of similar crime being committed, the conclusion on the evidence is simply that such a crime was not prevalent. If this Court in Wong Fung Ming came to the view that on similar facts the crime was not prevalent, it is not laying any sentencing guideline at all.

24. Furthermore, as a matter of statutory construction, the prevalence of the offence must be considered at the time of the sentence since the purpose of an enhanced sentence is to impose a deterrence on potential wrong doers. Hence the time of the commission of the crime is irrelevant. Again what this Court had said in Wong Fung Ming was merely to give effect to this construction.

25. This Court on 12 October 2001 in HKSAR v. Chiang Chun Wai and another (CACC No. 11 of 2001) had already stated that the starting point of four years' imprisonment for this type of offence was meant to be a deterrent sentence. What this Court said in Wong Fung Ming was merely a reminder of the earlier decision.

26. The appeal in the first case is allowed and the sentence is substituted by one of four years and eight months' imprisonment.

The second case

27. A similar type of fraud was practised in the second case. By then the applicant was already charged with the offence under the first case. According to the mitigation advanced on behalf of the applicant in the second case, the same group of organizers had set up another company, namely Yieldson Trading Ltd. ("Yieldson") after they had ceased the operation of Champion and the applicant together with others carried on the same mode of deception in Yieldson. The period of conspiracy was between 14 June 1999 and 3 August 1999. There were ten victims who complained to the police. Their loss was about HK$2,000,000.00. The applicant acted as a manager in Yieldson. His role also involved with receiving money from the victims.

Sentence for the conspiracy

28. On the conspiracy to defraud, the trial judge used a starting point of five years' imprisonment. He enhanced the sentence by 25%, making a total of six years and three months' imprisonment. He reduced it by one third because of the guilty plea and the sentence imposed on the first charge was four years and two months' imprisonment.

Starting point

29. On the starting point of five years, it is clear that the applicant had full knowledge that he was involved with the conspiracy. He actually carried on the deception in a new establishment after the police raid of Champion.

30. This Court had stated in Chiang Chan-Wai that a defendant who carried on with the conspiracy after the police raid was an aggravating factor. The situation is even worse that he carried on the conspiracy not merely in the former company after that company was raided, but further in a new company established solely for the purpose of deception. In our view, even recognizing that the applicant was not the mastermind of the fraud and he surrendered himself to the police, we still consider a five year's starting point to be appropriate in the circumstances of the case.

Enhancement

31. The trial judge also enhanced the sentence by 25%. He did it not on the basis of prevalence but on the material supplied by the prosecution under section 27(2) (a) and (b). The statistics that were provided were only up to 2000. They showed that the victims had dropped to 210 in 2000. The amount lost in 2000 was $52,770,000.00.

32. The judge was correct not to enhance the sentence on prevalence. As pointed out by this Court in Chiang Chun Wai and Wong Fung Ming the four year starting point was already appropriate in itself to act as a deterrence for those engaged in this crime. Hence the sentence should not be enhanced on the other grounds.

33. The trial judge also referred to the first offence as an organised crime. This is incorrect.

The sentence

34. As a result the first sentence should not be enhanced. After taking into discount the one-third disccount, the sentence for the conspiracy should be three years and four months' imprisonment. One month of the second sentence is to be served consecutively making a total sentence of three years and five months' imprisonment.

Totality

35. Considering the principle of totality, we are of the view that an overall sentence of six years and six months' imprisonment is appropriate. We will order one year and ten months of the sentence of the second case to be served consecutively to the sentence of the first case while one year and seven months will be served concurrently.

Conclusion

36. We will allow the applications and treat them as the appeal proper. The two appeals are allowed to the extent as indicated.

(Frank Stock)	(Peter Cheung)	(Thomas Gall)
Justice of Appeal	Justice of Appeal	Judge of the Court of First Instance

Representation:

Mr. John Reading, S.C., D.D.P.P. and Ms Priscilia T.Y. Lam, GC of the Department of Justice for the Respondent

Mr. Hanif Mohamed Mughal instructed by Legal Aid Department for the Applicant

CACC000504/2001

CACC 504/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 504 OF 2001

(ON APPEAL FROM DCCC 1184 OF 2000)

____________

BETWEEN
	HKSAR	Respondent

	AND

	CHUNG CHI-KIN	Applicant

_____________

Coram: Hon Stuart-Moore VP, Stock JA and Lugar-Mawson J in Court

Date of Hearing: 16 May 2002

Date of Judgment: 16 May 2002

________________

J U D G M E N T

________________

Hon Lugar-Mawson J: (giving the judgment of the Court)

Background

1. The Applicant, who was the 3rd defendant at trial, and 10 others were jointly charged in the District Court with an offence of conspiracy to defraud, contrary to common law and punishable under s.159C(6) of the Crimes Ordinance. The offence was alleged to have been committed between 1 September 1998 and 16 March 1999 (Charge 1). Seven of the other defendants, but not the Applicant, also jointly faced a charge of failure to comply with an order of the Court of First Instance made under s.4(2) of the Organized & Serious Crimes Ordinance (Charge 2).

2. The trial, which lasted for 37 days, took place before His Honour Judge Christie. The 3rd to the 8th Defendants broke bail and absconded before trial; they were tried in their absence. Of the remaining defendants, the 10th Defendant pleaded guilty to the conspiracy charge. The 1st and 2nd Defendants were acquitted at the close of the prosecution case, when the judge upheld a no case to answer submission. The 11th Defendant was acquitted at the end of the trial. The Applicant and the 3rd to the 8th Defendants were convicted of the conspiracy charge after trial. The 3rd Defendant was also convicted after trial on the Organized & Serious Crimes Ordinance charge. The others who faced that charge were acquitted.

3. On conviction, the Applicant was sentenced to serve 3 years and 9 months' imprisonment. He now seeks to appeal against his conviction. Mr Bernard Chung of counsel, represents him.

Facts

4. The case involved a Loco-London gold and silver fraud. It was the prosecution's case that on 2 November 1998, the police, after having received complaints about its activities, raided Champion Market Ltd ("Champion"). Champion purported to be a genuine gold and silver bullion trading company. Champion recruited its victims as junior office employees through newspaper advertisements. Most were offered and took part-time employment. None had any experience in bullion trading and all appear to have been selected because of their apparent naivety. On their offer of employment by Champion, they were offered an attractive salary. The victim was placed to work in a room with two fellow workers who, needless to say, were both parties to the fraud. One claimed to be newly recruited; the other claimed to be more experienced in the Champion's work and to have opened his own trading account, trading in gold and silver successfully.

5. Under pressure from his newfound colleagues who spoke of the boundless opportunities for him to make easy money from a foolproof scheme, the victim was induced to open his own trading account, making investments in cash. His more experienced colleague claimed that he would teach the victim how to operate his account. To buoy his confidence the victim was given receipts for his investment. A few days later, Champion's manager would claim that the victim had made a trading mistake that had resulted in him making a loss. He was required to pay Champion further sums of money in order to recover his original investment. If he did so, a few days later still he was told that due to his further trading mistakes all of his money had been lost. The victim would then either leave Champion in desperation or was dismissed, being of no further use to the fraudsters.

6. In the course of the trial, the names of the 'colleagues' and 'teachers' appeared and reappeared in the evidence of 33 victims, who were called to give evidence of their experiences while with Champion over the period of conspiracy.

7. It is common ground that the Applicant was a staff member playing the role of colleague, teacher or market room clerk.

8. Expert evidence from a certified public accountant and a member of the Chinese Gold & Silver Society in Hong Kong supported the prosecution's case that Champion was not a genuine bullion trading company.

9. There was abundant evidence that Champion's activities carried on unabated after the day of the police raid.

10. At trial, none of the defendants, including the Applicant, elected either to give evidence, or to call defence witnesses.

11. The Applicant's case was that he was not party to the conspiracy, being an honest employee of Champion and unaware of its fraudulent nature.

Grounds of Appeal

12. It is said in the grounds of appeal that the judge erred in drawing from the primary facts he found proved an irresistible inference that the Applicant was a party to a conspiracy, when other inferences were as equally supportable (the first ground of appeal). It is also said that the judge erred in placing a burden of proof on the Applicant (the second ground of appeal) and that the above reasons, either taken individually or collectively, render the conviction unsafe or unsatisfactory (the third ground of appeal).

First Ground of Appeal

13. The judge summarized and dealt with the prosecution case against the Applicant in over 5 pages of his reasons. He prefaced his discussion by summarizing the evidence against the Applicant. This consisted of his presence at the time of the police raid on Champion's premises; his admission at that time that he was a member of Champion's staff; his possession in his trouser's pocket of a number of receipts that Champion had given to certain of the victims, and that he was the brother of, and shared accommodation with the 4th Defendant, who the judge found to be also implicated in the conspiracy. As the judge appreciated, the Applicant had never claimed that he was one of the Champion's senior staff and none of the 33 witnesses had spoken of him performing the role of either colleague or teacher. In fact it appears that no witness identified him, or spoke of his role within Champion. And other than his admission that he was a member of Champion's staff, he made no further admissions to the police.

14. In respect of the Applicant's role in the conspiracy, the judge said:

" ... if the Applicant was a party to the conspiracy, it was more likely that he carried out the role of market office staff receiving order forms from prosecution witnesses and any other victims, or answering the phone calls in the market room. By 'market room' or 'dealing room', I mean the window annexed to the manager's office shown on the plan. Such a room is a normal feature of a legitimate bullion trading company, so it was part of the charade presented to the victims ... Given the nature of the conspiracy the inference is there to be drawn that anyone who took part on a regular basis in receiving the order forms in the market room or answering the phone calls and quoting prices, must have known that he was handling forms and giving prices for the purposes of a deception."

15. It is Mr Chung's argument that not only did the judge fail to determine what he meant by the phrase "market office staff", he based his finding on what the Applicant's role in Champion was on the basis of the civil standard of proof, as may be seen by his use of the phrase " ... it was more likely".

16. We do not agree; although it is true that no witness was able to identify the Applicant, or was able to say what his purported role in Champion was - as the judge said just before the passage Mr Chung complains of " ... the prosecution case does not fix the 9th Defendant's role in scheme." - the evidence shows that he was probably not a manager or a teacher or a colleague. That being so, there was only one other role for him to play, that of one of the market office staff. It was in this context, the judge used the phrase "more likely". What he was assured of was that the Applicant was a full-time staff member active in Champion's dishonest business. It must be remembered that Champion conducted no legitimate business and the Applicant had no real job to do. His job - if it may be so dignified with that title - was to act the part of one of the staff members.

17. It must also remembered that the trial was conducted by an experienced District Court Judge. It is inconceivable that he would have committed the fundamental error of deciding an issue of fact on anything other than the criminal standard of proof. And if the matter were left in any doubt, that is resolved later in his reasons, where the judge said in clear terms:

"In the case of D9, I am satisfied so as to be sure beyond reasonable doubt, that he knew the fraudulent purpose of the enterprise and that he took part in it. I am also satisfied that he continued to do so, and to remain there, for some time after 2 November. I am satisfied that D9's role was either to speak to victims on the phone from the market room and to receive their written orders, or to be actively engaged in persuading them to pay cash to the company, or any combination of those roles, and that in so doing, he knew that he acted dishonestly by any standard."

18. Mr Chung further argues that in the later part of the passage previously quoted, the judge did not consider the inference of knowledge of the fraudulent nature of Champion to be the only irresistible inference, or that at least he did not put it in such a way. As we have said the judge has a very considerable judicial experience and he was not directing a jury. It was certainly not incumbent on him to use the formula "... the only reasonable (or irresistible) inference" whenever he made reference to the inferences he had drawn from the facts. For us to require him to do so would be no more than imposing a requirement on District Court Judges that they adhere to a catechism.

19. Mr Chung takes further exception to the following passage in the judge's reasons:

"The company had been operating at these premises since September and continued to do so after the police raid, unfortunately for several months. It is a reasonable inference that a person found to be working at a going concern on a given day was, in the absence of any evidence suggesting the contrary employed there before and after that day."

20. He argues that this inference of continuous employment was not the only irresistible inference that could be drawn, especially after the day of the police raid. In true context what the judge was saying was that he could infer that the day of the raid was, in the absence of contrary evidence, not the only day that the Applicant had worked at Champion's premises. That was a sensible conclusion for him to draw.

21. The judge analysed the Applicant's possession of the victims' receipts in this way in his reasons:

"D9's possession of the company's receipts in his trouser pocket is a circumstance supporting the inference of his knowledge of the scheme and his participation. They record payments of $831,800 in cash within 4 days and I am satisfied that the money was all paid by the people employed in response to the false job advertisements. There is no evidence to suggest that he did not know what the receipts signified. The fact that they were found in his pocket and not found in a part of the office where such records would normally be kept also supports the inference, and I so find, that he tried to conceal them and therefore had knowledge that they recorded payments obtained dishonestly."

22. It is Mr Chung's argument that there was no evidence to suggest that the Applicant knew the nature or content of these receipts. Neither was there evidence to prove where they were normally kept. He says that these receipts are not confidential documents, they are of the type given to the victims. And, given their non-confidential nature, the fact that they were found in the Applicant's trouser's pocket could not give rise to an irresistible inference that he was trying to conceal them. The Applicant could well have been carrying out dispatch work without knowing the true nature or extent of the scheme.

23. Again we do not agree; this was a fraudulent company, it had no confidential records. In fact on the day of the police raid, apart from these receipts, its only other records were some unused order forms for the purchase and sale of bullion, and the interview record forms of 27 applicants for work there. Had the company been a legitimate one, it would be expected that its receipts would be kept in a file and not in the pockets of one of its employee's trousers. Given the factual matrix of this case, the suggestion that the Applicant had them for dispatch work is a fatuous one. Given the evidence of where they were found and the circumstances under which they were found - in the course of a police raid - the judge was entitled to come to the conclusion that the Applicant was trying to hide them from the police and that this indicated that he knew they recorded payments obtained dishonestly.

24. The remaining primary fact relied on by the judge is that the Applicant is the younger brother of the 4th Defendant, a person whom the judge found to be implicated in the conspiracy, and who resided with the Applicant. The judge put it this way in his reasons:

"D9 lived at the same address as D4, who is his brother. This circumstance, too, supports the inference that D9 had knowledge of Champion market's true purpose."

25. Had this stood alone, we would have had no hesitation in agreeing with Mr Chung that it could hardly give rise to any adverse inference of guilt, let alone the only irresistible inference. There can be no such thing as guilt by association. But it did not stand alone, it stood along with three other primary facts and we agree with Mr Man for the prosecution where he says in his skeleton argument that, whereas each of the four pieces of circumstantial evidence may not have been sufficient in themselves for the judge to draw the only irresistible inference that the Applicant was a party to the conspiracy, when their cumulative effect is considered, it is not surprising that the judge concluded that the Applicant who:

'worked' in a bogus bullion trading company, which conducted no legitimate business;
had a brother who played an active role in the long established fraudulent scheme carried out by that company;
was not a victim of the conspiracy;
was in possession of a number of receipts relating to various of that company's fraudulent transactions, stuffed into his trouser's pocket, which involved, in total, a very large amount of money; and
tried to conceal those receipts when the police raided that company's premises;

knew the fraudulent purpose of the enterprise and participated in it.

26. As Lord Simon said in DPP v Kilbourne [1973] AC 729:

"circumstantial evidence works by cumulatively, in geometrical progression, eliminating other possibilities."

And as Pollock CB said, as long ago as 1866, in R v Exall [1866] 4 F&F 922:

"One strand of the cord might be insufficient to sustain the weight, but three stranded together might be quite of sufficient strength. Thus it may be in circumstantial evidence - there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a strong suspicion, but the whole taken together, may create a strong conclusion of guilt, that is with as much certainty as human affairs can require or admit of."

Second Ground of Appeal

27. The second ground of appeal is a contention that the judge wrongly placed the burden of proof on the Applicant to prove that he did not know the nature of the receipts found in his possession, and that he had not worked in the Champion long enough to have sufficient knowledge of its fraudulent nature. In support of this contention, reliance is placed on the following passages in the reasons (they have been quoted before):

" ... there is no evidence to suggest that he did not know what receipts signified."
"... It is a reasonable inference that a person found to be at work at a going concern on a given day, was in the absence of any evidence suggesting the contrary, employed there before and after that day."

28. These words have been taken wholly out of context. In their true context they were merely general observations (and to our minds correct ones) that there was not one shred of evidence suggesting the contrary. In no way are they an indication that the judge erroneously reversed the onus of proof.

29. It must be borne in mind that the Applicant did not give evidence. In Li Defan & Anor v. HKSAR [2002] 1 HKLRD 527, the Court of Final Appeal approved (at page 538) the following passage in the judgment of Gleeson CJ in Azzopardi & Davies v. The Queen [2001] 119 A Crim R 8:

"The failure of the accused to give evidence is not of itself evidence. It is not an admission of guilt by conduct. It cannot be, because it is the exercise of a right which the accused has to put the prosecution to its proof ... But when an accused elects to remain silent in trial, the silence cannot amount to an implied admission. The accused is entitled to take that course and it is not evidence of either guilt or innocence. That is why silence on the part of the accused at his or her trial cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight. It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given, and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence. The fact that the accused's failure to give evidence may have this consequence is something which no doubt, an accused should consider in determining whether to exercise the right to silence ... But it is not to deny the right; it is merely to recognize that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right."

Lord Hoffman NPJ saying, succinctly, also at page 538:

"This is in my opinion also represents the law of Hong Kong."

30. In the absence of an explanation from the Applicant on the issues in question, it does not lie with him to complain that these inferences were made and were reached more readily because of his decision not to give the judge the benefit of his explanations.

Third Ground of Appeal

31. The third ground of appeal is an unashamed invitation for us to find that there is a lurking doubt in this case. This we decline to do; we are satisfied that no doubt, whether lurking or otherwise, exists in this case

Decision

32. For the reasons we have given, we are satisfied that the Applicant's conviction is neither unsafe nor unsatisfactory, and his application for leave to appeal against his conviction is dismissed.

33. As the application was wholly unmeritorious, we, pursuant to s.83W, of the Criminal Procedure Ordinance, Cap. 221, order that three months of the time the Applicant has spent in custody pending the determination of this appeal shall not be reckoned as part of the term of his sentence.

(M Stuart-Moore)	(Frank Stock)	(G J Lugar-Mawson)
Vice-President	Justice of Appeal	Judge of the Court of
		First Instance

Representation:

Mr Man Tak-ho, Jonathan, SGC of Department of Justice, for the HKSAR

Mr Chung Wai-keung, Bernard, assigned by the Director of Legal Aid, for the Applicant

HKSAR v. CHUNG CHI KING

Related cases with same parties

Files (4)

“(a)	is connected with the activities of a particular triad society;

(b)	is related to the activities of two or more persons associated together solely or partly for the purpose of committing two or more acts, each of which is a Schedule 1 offence and involves substantial planning and organization; or

(c)	is committed by two or more persons, involves substantial planning and organization and involves-

“(a)	the nature and extent of any harm caused, directly or indirectly, to any person by the act in respect of which the person has been so convicted;

(b)	the nature and extent of any benefit, whether financial or otherwise, that accrued or was intended to accrue, directly or indirectly, to that or any other person from that act;

(c)	the prevalence of that specified offence;

(d)	the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of that specified offence;

(e)	the nature and extent of the total benefit, whether financial or otherwise, accruing directly or indirectly to any person from recent occurrences of that specified offence."