HKSAR v. FONG CHUN HEI, ERNIE

CACC179/2006
& CACC376/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 179OF 2006 AND 376 OF 2007

(ON APPEAL FROM DCCC 60, 190 AND 1088 OF 2006)

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REASONS  FOR  JUDGMENT

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Hon Barnes J (giving the judgment of the Court) :

1. The applicant faced a total of 7 charges in three separate cases in the District Court.  These cases involved the applicant using and being in possession of counterfeit credit cards on 3 separate occasions :

1^st case — 25 August 2005 (DCCC1088/2006);

2^nd case — 7 November 2005 (DCCC60/2006); and

3^rd case — 22 December 2005 (DCCC190/2006). 

2. The 1^st case was the last one brought before the court.  The applicant committed the 2^nd and 3^rd cases while on bail.  

3. The 2^nd and 3^rd cases were consolidated and heard before Deputy District Judge D.I. Thomas in April 2006.  The applicant pleaded guilty to all 5 charges (we would referred to them as charges (1) to (5)) and was sentenced as follows :

DCCC60/2006

Offence	Starting point	Sentence
(1)     Using a false instrument	24 months	16 months
(2)     Using a false instrument	24 months	16 months
(3)     Possessing false instruments	30 months	20 months

DCCC190/2006

Offence	Starting point	Sentence
(4)     Using a false instrument	30 months	20 months
(5)     Possessing false instrument	36 months	24 months

4. Judge Thomas ordered the sentences imposed on charges (1) to (3) above to run concurrently (20 months); the sentences imposed on charges (4) and (5) also to run concurrently (24 months) but consecutive to charges (1) to (3), making a total of 44 months. 

5. In relation to DCCC1088/2006, the applicant was one of 4 defendants brought before Deputy District Judge Douglas Yau in October 2007.  He pleaded guilty to the 1^st and 4^th charges (we would refer to them as charges (6) and (7) here) and was sentenced as follows :

Offence	Starting point	Sentence
(6)     Conspiracy to use false instrument	2½ years	1½ year
(7)     Possession of false instrument	21 months	1 year

6. Judge Yau ordered the sentences imposed on charges (6) and (7) above to run concurrently (18 months), but to run consecutively to the 44 months imposed on charges (1) to (5) above.  

7. The total sentence imposes on charges (1) to (7) was 62 months. 

8. The applicant’s application for leave to appeal against the sentences imposed by Judge Thomas in the consolidated case (CACC179/2006) was dismissed by Hon Stuart-Moore VP on 23 August 2006.  The applicant renewed his application before us.  

9. The applicant also applied for leave to appeal against the sentence imposed by Judge Yau (CACC376/2007). 

10. After hearing submission we granted leave to appeal and treated the application as the appeal proper.  We allowed the appeal, set aside the sentences imposed by Judge Thomas and substituted with the following :

CACC179/2006

(1)     14 months;

(2)     14 months;

(3)     18 months;

(4)     18 months; and

(5)     21½ months. 

We ordered :

(1) to (3) to run concurrently (18 months);

(4) and (5) also to run concurrently (21½ months); and

18 months of (4) and (5) to run consecutively to (1) to (3), making a total of 36 months. 

CACC376/2007

(6)     18 months; and

(7)     12 months. 

We ordered :

(6) and (7) to run concurrently (18 months).

We further ordered 6 months of (6) and (7) to run consecutively to the 36 months imposed above, making a total of 3½ years (42 months). 

11. These are our reasons.

Admitted facts and background

12. On 25 August 2005, the police found the applicant and three other males (co-defendants in DCCC1088/2006) acting suspiciously and kept them under observation.  At the time the applicant and one male (D2 at the trial) was each carrying a bag.  They handed their bags to the other two males (D3 and D4).  The applicant was intercepted by the police.  In his pocket the police found two counterfeit credit cards in the name of the applicant.  The applicant admitted he had used one of the cards to purchase a mobile phone.  He also admitted both cards were counterfeit ones.  

13. On 7 November 2005 — while on bail — the applicant attempted to purchase a Louis Vuitton handbag with a forged credit card.  The sales person failed to obtain an approval code and the applicant said he would return with cash to pay for the goods.  He then left with the card.  The applicant returned 10 minutes later and produced another forged credit card to pay for the handbag.  When the sales person said he had to check with the card centre first, the applicant asked for the card back.  This aroused the suspicion of the sales person, who then locked the door of the shop and called the police.  The police arrived and found two other forged credit cards in the applicant’s bag.  

14. On 22 December 2005 — while still on bail — the applicant used a forged credit card in his name to pay for an Omega watch.  Approval code was obtained and the applicant signed on the relevant document.  A supervisor of the shop, who saw the transaction over the CCTV, felt suspicious and made enquiries with the card centre and called the police.  She also instructed the sales person to delay the applicant.  The applicant was intercepted by the police when he was leaving the shop.  Upon search, another forged credit card in the applicant’s name was found in his wallet. 

15. Under caution the applicant said someone called “John” gave him two forged credit cards and told him to do purchase.  The applicant would be given $500 to 1,000 as reward for each transaction.  

Grounds of appeal

16. Mr Victor Cheung, counsel for the applicant, made it clear at the outset that he has no quarrel with the individual sentence passed for each offence.  The main ground of appeal he put forward for the applicant was the failure of the prosecution to inform Judge Thomas the fact that the applicant had given valuable assistance to the police which resulted in the arrest and conviction of the person named “John” for offences relating to possession of another’s identity card and forged credit card.  Had Judge Thomas been informed of such assistance, the applicant would have been given a greater discount for his plea, Mr Cheung submitted.  

17. In relation to the sentence imposed by Judge Yau, as the judge was made aware of the applicant’s assistance to the police, the complaints made on the applicant’s behalf was that the judge failed to give consideration in relation to the delay in bringing the case to court, and that the judge erred on principle when he ordered the sentence imposed in DCCC1088/2006 to run wholly consecutively to the 44 months imposed in the consolidated case. 

18. The applicant submitted the total sentence of 62 months was manifestly excessive. 

Respondent’s response

19. Mr William Tam, Senor Assistant Director of Public Prosecutions, fairly conceded that a sentence of 62 months would equate to a starting point of 8 years 7 months, which was manifestly excessive to the criminality involved in the 7 charges.  

Assistance to the police

20. According to the affidavit evidence of the applicant, after he was released on bail for the 3^rd case, he co-operated with the statement-taker of his cautioned statement — PC53667 (“Ah Tak”) by giving the latter information leading to the identification of one Chu Chi Keung (“John”).  John was arrested on 30 December 2005 and was later convicted of possession of false instrument and an identity card relating to another (KCCC900/2006).  John was sentenced to a total of 16 months imprisonment on 21 February 2006.  

21. The applicant in his affidavit said since Ah Tak had told him not to disclose the matter to anyone, the applicant therefore did not inform his own counsel who mitigated on his behalf before Judge Thomas.  Neither the prosecution nor the defence informed Judge Thomas of the assistance rendered by the applicant. 

22. The response by Detective Senior Inspector (DSIP) Michael Ho in his affidavit was that a team of police officers including Ah Tak did arrest John on 30 December 2005 in Tsim Sha Tsui and John was indeed sentenced to a total of 16 months imprisonment on 21 February 2006.  DSIP Ho said in his affidavit the applicant applied for a stay of proceedings relating to the offence committed in August 2005 (DCCC1088/2006), claiming Ah Tak had promised him he would not be prosecuted for that particular offence and had given him money.  After hearing testimony from both the applicant and Ah Tak, the judge found the applicant did provide information about the person who had supplied the cards to him, but did not accept Ah Tak had promised him he would not be prosecuted or had paid money to him.  The judge refused to stay the proceedings and the applicant pleaded guilty afterwards. 

23. It would appear from the above that the police did not admit there was assistance from the applicant but the judge found the applicant did assist. 

24. We do not have the transcript of the testimony of the applicant and Ah Tak.  Since the trial judge accepted, after hearing evidence, that the applicant did render assistance to the police, and had indeed given the applicant the kind of discount consistent with someone who had not only pleaded guilty, but had rendered assistance, we are prepared to act on that basis. 

25. Given the stance of the police (in not accepting the applicant did render assistance), it is not surprising that the prosecution did not bring this matter to the attention of Judge Thomas.  Had Judge Thomas been made aware of the assistance rendered, he would no doubt have considered a greater discount than the usual one-third upon plea.  

26. Adopting the same starting point used by Judge Thomas but giving the applicant a 40% discount, the sentences would be as follows :

	Starting point	Sentence (40% discount)
(1)	24 months	14 months
(2)	24 months	14 months
(3)	30 months	18 months
(4)	30 months	18 months
(5)	36 months	21½ months
(1) to (3) all concurrent — 18 months; and
(4) and (5) concurrent — 21½ months.

27. As charges (4) and (5) were committed shortly after charges (1) to (3) and are distinct and separate offences, the sentences should run consecutively to those imposed on charges (1) to (3).  The only consideration is whether the sentence is manifestly excessive when applying the totality principle.  

28. Having considered all the circumstances, we are of the view that a total sentence of 36 months would adequately reflect the criminality involved.  Towards this end, we ordered 18 months of the 21½ months imposed on charges (4) and (5) to run consecutively to the 18 months imposed on charges (1) to (3), making a total of 36 months. 

29. In relation to charges (6) and (7), Judge Yau adopted 2½ years as a starting point for the conspiracy charge (charge (6)).  The applicant was given a 40% discount, hence 18 months’ imprisonment.  Regarding the possession of forged credit card charge (charge (7)), Judge Yau adopted a starting point of 21 months.  The applicant was given slightly more than 40% discount when he was sentenced to 12 months’ imprisonment. 

30. Regarding the concurrent sentence of 18 months for charges (6) and (7), Mr Cheung’s complaint was that Judge Yau did not give the applicant a further discount in relation to the delay and also on totality when Judge Yau ordered the whole of the 18 months to run consecutively to the sentences imposed by Judge Thomas. 

31. On the face of it, there was indeed a delay in bringing the offences committed on 23 August 2007 (charges (6) and (7)) to court.  Mr Tam informed us that the delay was caused as one of the credit cards found in the applicant’s possession (a Chase Manhattan MasterCard) related to a bank account opened in the United States, the police needed time to make enquiries with the bank overseas, and to investigate whether the said card had been used in any transaction.  Mr Tam nevertheless accepted it should not have taken quite so long to bring the case to court.  

32. Mr Cheung accepted that the prosecution did give such an explanation to the court below.  He was not in a position to confirm whether the judge accepted such an explanation.  He did not, however, ask this court to read the transcript as he was not relying heavily on the issue of delay. 

33. The ultimate question this court has to decide is one of totality. Mr Tam has very fairly conceded an overall sentence of 62 months was manifestly excessive.  We are of the view that had the applicant been charged with all 7 charges at the same time, an overall starting point of 6 years would have been appropriate.  A 40% discount instead of the usual one-third would yield a total sentence of 43 months.  In all the circumstances, we would reduce the sentence to 42 months.  

34. For these reasons, we allowed the appeal and imposed a total sentence of 42 months.