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HKSAR v. AU YEUNG PUI WAH

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41011-EN-2004-06-09

HKSAR v. AU YEUNG PUI WAH

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CACC000149A/2002

CACC 149/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 149 OF 2002

(ON APPEAL FROM DCCC 693 OF 2001)

____________________

BETWEEN
	HKSAR	Respondent

	AND

	AU YEUNG PUI WAH (歐陽培華)	Applicant

____________________

Coram: Hon Stuart-Moore VP and Stock JA

Date of Hearing: 9 June 2004

Date of Judgment: 9 June 2004

____________________

J U D G M E N T

____________________

Stuart-Moore, VP (giving the judgment of the Court):

Background

1. On 1 March 2002, the applicant was convicted following a trial in the District Court before Judge W. Wong of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap. 200. She was sentenced on 22 March 2002 to a term of two years and eight months' imprisonment.

2. The applicant now seeks leave to appeal against her sentence some twenty-five months out of time.

3. The conspiracy in which the applicant agreed with six others to defraud, related to a well known scam usually referred to as a "Loco London Gold/Silver" fraud. Between 20 December 1999 and 2 March 2000, a bogus company called "Best Sky" was in operation, holding itself out as a genuine bullion trading enterprise. Using the press to advertise menial jobs at high wages, the company was able to trap gullible people, who often turned out to be middle-aged women, into applying for the jobs on offer. However, when the job applicants went to the relatively plush company offices in Connaught Road Central, they would quickly find themselves having to work on "calculations" contained in what appeared to be investment files. After clever persuasion by members of the conspiracy, the newly recruited "employees" were then deceived into "investing" their own hard-earned savings in what they were led to believe was bullion trading. Needless to say, they lost all their money. The applicant, who was the 1st defendant at trial, operated under the name of "Kelly".

4. The judge, in the Reasons for Verdict, described the applicant's role in the following terms:

"In respect of the 1st defendant, PW1 said on her first day at work, on 14 February 2000, there was a Kelly Au in the room who told her it was also her first day. When PW1 queried about the company and wanted to leave, Kelly Au asked her friend who was a lawyer to make enquiries. Kelly told her that the lawyer friend said the company had a branch in Causeway Bay and that the company had a capital of 5 million. That was of course not true. When D5 told them he had made a lot of money from investment, Kelly persuaded her to invest and encouraged her by telling her it was easy to make money. Kelly also suggested how she could get money to invest. Kelly, always in the presence of D5, asked about PW1's financial position. PW1 had been persuaded by Kelly and D5 to invest by saying it was easy to make money. When PW1 worried that she might have been deceived, she was consoled by Kelly and D5." (Appeal bundle p. 43)

5. In his sentencing remarks, amongst other things, the judge said:

" I am satisfied that all defendants are not the prime movers in this conspiracy, but they do play different roles. The sentence I am about to impose would reflect on the different roles that they played.
I am satisfied that this is an organised crime which was prevalent. I accept that there was a decline of such crime statistically, but according to Chief Inspector Chan, the modus operandi now is to set up such companies for a short duration so that it is difficult to detect. Hence, I am of the view that an enhancement of sentence is necessary to serve as a deterrent.
In this conspiracy I considered the role played by the 2nd, 3rd and 7th defendants is more significant and more involved in the management of the company. Whilst the 1st, 4th, 5th, and 6th defendants played a lesser role by inducing the victims to invest.
There are no mitigating factors. I do not consider each defendant's background as a factor which I should take into consideration. The fact that they have a clear record would not have much significance in sentencing crimes of such a serious nature. A long custodial sentence is inevitable.
It is said that I have to sentence the 1st defendant, who is now pregnant and who had a rather tragic past family background and who is now having a boyfriend with supporting parents, to prison. But then the role she played is the same as the 4th, 5th and the 6th defendants.

As she is not fit to go to a training centre, to give her a sentence different from the other three defendants would mean there is disparity.
So in respect of the 1st, 4th, 5th and 6th defendants, I take a starting point of 2 years and I enhance sentence by one-third and sentence each of them to 2 years and 8 months' imprisonment." (Appeal bundle pp. 47-48)

6. Long out of time though this application is, we are, of course, entitled to look at its merits.

7. In her reasons for applying out of time, the applicant made reference to the decision of this court in HKSAR v Lee Yuek-sing and others, CACC 515/2001 (and CACC 521/2001) where it was held, in a similar case to this, that there had been an error in principle for a judge, in November 2001, to have enhanced the sentences he imposed on the basis of prevalence at a time when this statistics revealed a decrease in the number of such cases since 1999. As the judge had correctly observed in the present case, this factor was again borne out by the statistics he was given, albeit there was an allegation from Chief Inspector Chan that a change in methods of operation had led to difficulties in detecting later culprits of this kind.

8. Mr Madigan, counsel for the respondent, has very properly drawn our attention to subsequent applications in HKSAR v Lin Yuet-ming, CACC 258/2003, and in HKSAR v Lau Wing-chi and others, CACC 29/2003, where the element of enhancement in the sentences imposed in those cases was again quashed in similar circumstances to those which have occurred in the application presently before us.

9. It is our view that there is nothing to distinguish this case from the earlier ones to which we have been referred. In such circumstances, Mr Madigan has conceded that the sentence passed on this applicant should not have been enhanced.

10. Accordingly, in the interests of justice, this application for leave out of time will have to be granted so that the element of enhancement is removed from the sentence the applicant is serving.

11. We should add that the applicant was later sentenced, without any element of enhancement, for her role in a similar conspiracy for which she received a further sentence of two years and eight months, of which one year and four months was ordered to run consecutively to the sentence the applicant is now serving. In this regard, we are informed that the applicant is due for release on 29 October 2004. If this is correct, and the applicant has agreed that it is, the course we propose to take today may result in the applicant, assuming her good behaviour while in custody, being released at a much earlier date.

Conclusion

12. We shall give leave to appeal out of time. Treating the hearing as the appeal, we shall allow the appeal by reducing the sentence of two years and eight months to two years which will have the effect of removing the element of enhancement from the sentence. To this extent the appeal succeeds.

(M. Stuart-Moore)	(Frank Stock)
Vice-President	Justice of Appeal

Representation:

Mr P.K. Madigan, SGC, of the Department of Justice, for the Respondent.

Applicant in person.

CACC000149/2002

CACC 149/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 149 OF 2002

(ON APPEAL FROM DCCC 693 OF 2001)

____________________

BETWEEN
	HKSAR	Respondent

	AND

	NG WAI LING (D4)	Applicant

____________________

Coram: Hon Stuart-Moore VP, Yeung JA and Tong J in Court

Date of Hearing: 12 August 2003

Date of Judgment: 12 August 2003

____________________

J U D G M E N T

____________________

Stuart-Moore VP (giving the judgment of the Court):

1. On 1 March 2002, the Applicant, who was the fourth defendant in the court below, was convicted of conspiracy to defraud after a trial in the District Court before Judge Wesley Wong. She now seeks leave to appeal against conviction.

2. The facts of the case provide a woefully familiar pattern of deception in what has become known as "Loco London Gold/Silver" fraud. The general allegation is effectively summarised in the particulars of the charge which alleged against the Applicant (charged with D1-3 and D5-9) that between 20 December 1999 and 2 March 2000 she conspired, together with her co-defendants, and with Yuen Lik-hang and others unknown, to defraud such persons as might be induced to give them money to invest, by dishonestly:

"(a) falsely representing to such persons that they were genuinely employed by Best Sky Technology Limited ('Best Sky');
(b) falsely representing to such persons that Best Sky was genuinely involved in trading, including trading in Loco London Gold, investing and other commercial activities;
(c) inducing such persons to invest money in investments introduced by Best Sky;
(d) falsely representing to such persons that the money invested by such persons had been invested in genuine investments;
(e) failing to invest the money provided by such persons for the purpose of investment;
(f) appropriating the money provided by such persons for the purpose of investment; and
(g) falsely representing to such persons that the money they had purportedly invested had incurred losses."

3. All except D8 and D9 were convicted on this charge.

4. Best Sky was found by the judge to have been an entirely bogus outfit. It possessed none of the essential features of a genuine bullion trading company. It was simply used as a vehicle for fraud from its well-appointed offices at Fung House in Connaught Road Central. Its methods were, it has to be said, almost exactly the same as this court has encountered in numerous other cases of the same kind.

5. The judge, in his Reasons for Verdict, summarised how Best Sky trapped its victims into coming forward by placing regular advertisements in newspapers offering employment for people to work as clerks or cleaners. Those who responded were then "employed", not in the capacity described in the advertisements but, instead, to make "calculations". Almost immediately they found themselves being turned into "clients" once they had "invested" money in personal accounts. Despite making relatively small deposits, these so-called clients were allowed to "trade" in what purported to be massive sums. In no time, they found that the profits they were said to have made had been wiped out. They quickly discovered that they had become the victims of a scam when they were told that they had lost their entire capital outlay.

6. The prosecution's evidence about the Applicant's role focused entirely on the way in which PW2 was induced, through the efforts not only of the Applicant but D3 and D6 also, to part with $21,000. In his Reasons for Verdict, the judge summarised in some detail the nature of the evidence against the Applicant before giving his brief assessment in these terms:

"62. D4 (the Applicant) and D6 were concerned with inducing PW2 to invest. On 25 February, it was PW2's first day at work. D4 called herself 'Gi Gi', was inside the room. She told PW2 that it was her first day at work. On the 28th, 'Ah Kit', D6, was inside the room looking at the computer and did a calculation. D3 told PW2 that D6 had worked for over one month, which of course was not true. D6 claimed that originally she was just like D4 and PW2, then the company engaged her in buy and sell according to the computer. She joined in and gained some money. D6 told them the return was high. D4 then showed interest and asked how to open the account. D4 asked PW2 to join in with her to invest. Eventually, PW2 gave $21,000 to join in. The method is similar to what happened to PW1. ..." (Appeal Bundle pp.45-46)

7. The case which was advanced on the Applicant's behalf at trial was that she was in virtually the same position as PW2. She had supposedly come to Best Sky on the same day as PW2 and may, therefore, far from assisting in the fraud, merely have been an innocent dupe in the events which unfolded thereafter. This contrasted with the prosecution's allegation that the Applicant was merely acting the role of a new recruit at Best Sky when she told PW2 that she had started work on the same day as PW2. The prosecution claimed that this was obviously an untrue assertion bearing in mind that PW2 had testified that it was the Applicant who had "taught" her how to do "calculations" on her first day at work.

8. The Applicant chose not to give evidence in support of the wholly innocent role which it had been suggested on her behalf she had played. It was, therefore, pre-eminently a case in which it was for the judge to decide, on the evidence adduced by the prosecution, whether there was sufficient material on which an inference of guilt could safely and irresistibly be drawn against the Applicant.

9. Against this background, it was firstly submitted by Mr Surman, on the Applicant's behalf, that there was "no evidence against (the Applicant)".

10. This submission was plainly misconceived in the light of the evidence we have set out already. Best Sky was a bogus company. It only existed to defraud the public. There was not a shred of evidence, as Mr Madigan pointed out in his written argument on the Respondent's behalf, that any genuine trading ever took place. The talk of high returns and investment potential which was done in front of PW2 by those, including the Applicant, who had pretended to be genuinely interested, was obviously capable of amounting to evidence of a rehearsed charade which was intended to, and did, induce PW2 to part with her money. The judge was entitled, Mr Madigan contended, to have drawn an inference adverse to the Applicant. We agree and, accordingly, we reject the first ground.

11. In the closely related second and third grounds, which were advanced by way of alternatives to the first ground, it was argued that the prosecution's evidence was "so tenuous" that the conviction was unsafe or unsatisfactory and that the judge had drawn erroneous inferences against the Applicant.

12. These grounds also fail. As we have said already, the Applicant did not give evidence. She was, of course, under no duty to do so. Indeed, the same applies to her co-defendants none of whom gave evidence and no witnesses were called on their behalf. We consider that, bearing in mind the whole nature of Best Sky's operation, there was a sufficiency of evidence from which the judge could safely conclude that the Applicant had played along with the scheme which led PW2 into being persuaded to "invest" her money with this bogus enterprise. Furthermore, it is inconceivable that the guilty participants in this fraudulent scheme would have left a genuinely new recruit, as the Applicant had told PW2 she was, to teach PW2 how to do the accounts.

13. In the absence of any evidence to the contrary, in our view the judge drew the only sensible inference which was realistically open to him, based on the Applicant's words and conduct, set against the whole of the surrounding circumstances. In arriving at his conclusion, the judge had assessed the evidence given by the all-important witness to testify against the Applicant and we have not been provided with any reason which would justify our interference with the judge's conclusion. This was a case where the failure of the Applicant to give any explanation for her conduct can only have strengthened the inference that she had acted as a participant in the conspiracy.

14. The application is dismissed.

(M. Stuart-Moore)	(W. Yeung)	(Louis Tong)
Vice-President	Justice of Appeal	Judge of the Court of
		First Instance

Representation:

Mr P.K. Madigan, SGC, of the Department of Justice, for the Respondent.

Mr Giles Surman, instructed by Director of Legal Aid, for the Applicant.