In this issue
URGENT NOTICE re: Issue 30 of our Criminal Appeals Bulletin
Financial Crime Appeals
Hong Kong Case Summaries
Appeals Against Sentence; England and Wales
Appeals Against Conviction; England and Wales
Hong Kong Case Summaries

By Richard Thomas

 

Court of Appeal

Sentencing – Credit Card Fraud

 

HKSAR v. FUNG WAI YIP

 

[2019] HKCA 418; CACC 231/2018 (3rd April 2019)

 

The defendant appeal against the sentence of 4 years and 4 months imprisonment following a guilty plea for what was described as a very serious case of credit card fraud involving 32 counts. The Court upheld the starting point of six years and affirmed the authority to which the sentencing judge referred:

 

9. The judge referred to R v Chan Sui-to and Another [1996] 2 HKCLR 128, where it was held that sentencing credit card fraud cases necessitated the consideration of various factors, including the size and planning of the operation, whether an international element was present and the role that the defendant played. It was further held that defendants having played an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning or equipment, and without an international dimension, should expect to receive a sentence of 5 to 6 years’ imprisonment after trial. It was also noted that sentences might be adjusted in accordance with any aggravating or mitigating factors.

 

 

Sentencing – Totality

 

HKSAR v. CHONG HUNG SHEK

 

[2019] HKCA 451; CACC 168/2018 (16th April 2019)

 

The defendant was employed as a conveyancing clerk and sentenced for three counts of fraud arising from the taking of money from the accounts of clients of the firm who employed him. The sentencing judge took a ‘global approach’ to sentence. The Court of Appeal once again explained that whilst this approach was understandable, it was to be deprecated and the correct way to give effect to the entire criminality was instead through the principle of totality and that individual sentences needed to be passed:

 

49. In HKSAR v Wong Chor Wo[15] this issue was before the Full Court of the Court of Appeal presided over by Ma CJHC, as Ma CJ then was. In giving the judgment of the court Saunders J said:

 

A global sentence is wrong in principle:

 

5. It is correct that a global sentence was imposed. The Judge said so in terms. That was plainly wrong in principle. Mr Alex Lee sensibly accepted that the imposition of a global sentence on multiple charges was wrong in principle.

 

6. The law is set out in HKSAR v Chan Nai Keung & Ors, unreported, 19 February 2008, CACC 284/2006. The correct sentence should always be imposed for each individual offence where there are a multiplicity of offences before the court, and the question of totality then considered. The appropriate individual sentences are then imposed, either concurrently, or concurrently and wholly or partially consecutively, in order to properly reflect the totality of the offending.”

 

50. The judge cannot be criticized for wanting to take a global view of the applicant’s culpability. However, a global view of culpability is different from a global approach to sentence. A global view of culpability is an essential tool when sentencing for multiple offences. It comes into play after the sentencing judge has completed an individualised sentencing process and it is used to guide the judge to an appropriate final sentence in conjunction with the application of the totality principle. The tool by which the final sentence is achieved is the court’s power, in respect of multiple charges, to order that the sentence imposed on one charge be served consecutively or partially consecutively to the sentence imposed on another charge.

 

 

Sentencing – Out of Time – Loss of Time

 

HKSAR v. CHAN CHI MAN

 

[2019] HKCA 392; CACC 262/2018 (2nd April 2019)

 

This appeal in a driving case is only notable for two matters unconnected to the substantive arguments on appeal. Firstly, the Court refused to grant an extension of time having applied the test in HKSAR v Medina and another CACC 296/2007:

 

“In considering whether leave should be given to appeal out of time, we look at the length of the delay, the reasons advanced for the delay and generally the bona fides of the application for extension of time. We would also look at the ground of the proposed appeal to see whether; by refusing leave to appeal, we were not shutting out a substantial and plainly arguable ground of appeal. Substantial grounds must be shown for the delay before we would grant indulgence, and the longer the delay, the more onerous is the duty of the applicant. . . . ”

 

Secondly, the Court the made clear that the threat of a loss of time direction under section 83W(1) is not an idle threat in an appeal that is wholly without merit especially where:

 

In the Single Judge judgment of Zervos JA, the applicant was informed of the court’s power to order loss of time. He was further reminded of it in the Form XII (Notice of Order of the Single Judge) and the Form XIII (Notice of Renewal of Application after Refusal by the Single Judge).

 

The Court ordered loss of time of 8 weeks (which amounted to a not insignificant proportion of the time the appellant would spend in custody given the sentence originally imposed was 20 months).

 

[Editor note: For an analysis of the English courts’ approach to “Loss of Time Directions” see: case commentary on R v Gray and others  (Case comment) [2015] Crim LR 352: here.

 

 

If you would like to discuss these cases with Richard Thomas, please email here.