HKSAR v. HO CHI TAT

CACC 57/2024
CACC 58/2024
and CACC 65/2024

On appeal from [2024] HKDC 359

(Heard together)

[2025] HKCA 123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NOS 57, 58 and 65 OF 2024

(ON APPEAL FROM DCCC NOS 983, 561, and 532 OF 2023)

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J U D G M E N T

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1.  On 29 February 2024, the applicant appeared before HH Deputy Judge K Lo (the judge) for plea and sentence in respect of three consolidated cases.

2.  In DCCC 983/2023, the applicant was charged with one charge of theft and three charges of obtaining property by deception. On 22 March 2022, the applicant stole a person’s wallet, containing $400 cash and two credit cards, while carrying out repair work at the person’s home (Charge 1). He then used the credit cards on three separate occasions buying $6,000 cash coupons (Charge 2) and $8,000 cash coupons (Charge 4) from Wellcome Supermarket, and $620 worth of goods from a convenience store (Charge 3).

3.  In DCCC 532/2023, the applicant and Ho Chi Hang (D1) were jointly charged with having custody or control of counterfeit currency notes, consisting of 64 pieces of $1,000 notes, 6 pieces of $500 notes and 36 pieces of $100 notes (Charge 2). D1 faced an additional charge consisting of 3 pieces of $1,000 notes and one $500 note (Charge 1) On 21 September 2022, police executed a search warrant at a unit, to which the applicant had keys, and found the counterfeit notes particularised in Charge 2 with the applicant’s fingerprints amongst them.

4.  In DCCC 561/2023, the applicant was charged with three charges of passing counterfeit notes (Charges 1 to 3) and possession of an identity card relating to another person (Charge 6). On 24 and 25 October 2022, the applicant purchased mobile telephones that cost $11,000, $2,500 and $3,000, respectively, using counterfeit Hong Kong currency (Charges 1, 2 and 3). He also had someone else’s Hong Kong Identity Card in his possession (Charge 6).

5.  In DCCC 983/2023, the judge adopted a starting point of 12 months on Charge 1 and 27 months on each of Charges 2, 3 and 4, which she reduced by one third for his guilty plea. After making appropriate adjustments to the notional sentences applying the totality principle, the judge sentenced the applicant to 22 months’ imprisonment.

6.  In DCCC 532/2023, the judge adopted a starting point of 42 months, which she enhanced by 3 months because the offence was committed while on police bail, which she reduced to 30 months’ imprisonment for his guilty plea.

7.  In DCCC 561/2023, the judge adopted a starting point of 30 months on each of Charges 1, 2 and 3, which she enhanced by 3 months because the offences were committed while on police bail. She reduced the notional sentence to 22 months’ imprisonment for his guilty plea. The judge sentenced the applicant to 12 months’ imprisonment for Charge 6 upon a plea of guilty. After making appropriate adjustments to the sentences upon applying the totality principle, the judge sentenced the applicant to 34 months’ imprisonment.

8.  The total sentences of the three cases came to 86 months’ imprisonment which the judge again adjusted by applying the totality principle to 67 months’ imprisonment.

9.  I cannot find fault with the starting points adopted by the judge of the individual charges in each case and the enhancement of 3 months for the offences he committed whilst on police bail. The usual starting point for cases of simple credit card fraud is 3 years’ imprisonment or less: HKSAR v Li Chi Yat, unrep., CACC 189/2018, 30 April 2019; HKSAR v Dai Xiangfei, unrep., CACC 169/2018, 4 January 2019; HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242. There are no sentencing guidelines for possession of counterfeit notes. The Judge adopted a starting point of 3 years and 6 months imprisonment, applying the relevant sentencing considerations for such an offence, namely the value, the quantity, and the degree of sophistication of the counterfeit notes. The judge approached the sentencing of the applicant with impeccable care and consideration for his multiple offences and made the appropriate adjustments to ensure the sentences were fair and appropriate. She continued with this approach when determining the overall sentence for the crimes he committed.

10.  The applicant complains that there was a discrepancy in the starting point adopted between him and D1 in DCCC 532/2023. There was no discrepancy. They both received a starting point of 42 months’ imprisonment, but in the applicant’s case, it was enhanced by 3 months because he committed the offence whilst on police bail.

11.  There is no basis for complaint for the sentence passed by the judge.

12.  The applicant’s application for leave to appeal sentence is refused.

13.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.