HKSAR v. CHAN KWAI FUI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.194
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 19th March 1998, this Applicant (D2 at trial) pleaded guilty before Deputy Judge Candy to five charges of obtaining property by deception through the fraudulent use of 2 stolen credit cards. The judge took a 4 year starting point for this Applicant and reduced this by a full one-third when he imposed concurrent sentences of 2 years and 8 months on each charge.

2. The Applicant now seeks leave to appeal on the basis that he has received a longer prison sentence than D1 although both of them had pleaded guilty. He believes that the starting point adopted by the judge was too high, and that the judge was referring to cases that were not appropriate when deciding what the starting point should be. He also refers us to his physical state which is weakened because he suffers from diabetes.

3. Today he adds a further ground, in which he tells us that his lawyer left out from the mitigation placed before the judge a number of points that should have been taken into account. Having heard the Applicant explain to us what these were, we do not think for one moment that they would have made any difference to the sentence.

4. The facts revealed that at 7:00 p.m. on 6th November 1997, the loser of one of the credit cards put his jacket on the back of a chair in a restaurant in Causeway Bay and discovered two hours later that his wallet had gone. By the time he discovered this, the Applicant and D1 were already purchasing a jacket and lady's handbag valued at over $7,000 and later a gent's handbag valued at $3,465 in a shop in Causeway Bay. The Applicant forged the owner's signature of the visa slip. The Applicant and D1 repeated their dishonest spree at a second shop, at about the same time, by purchasing two Gucci watches valued at over $12,000. In passing, it is noticeable that the Applicant complains that he was then living a very hard life in having to support his child and these were clearly not the sort of items which people who were concerned about living on the breadline would have taken.

5. A few days later, a similar theft of a wallet and contents took place at another restaurant, this time in Central, resulting in the loss of credit cards and, within a very short space of time, the Applicant, together with D1, were capitalizing on the theft. This time goods worth over $5,000 were purchased in one shop and $8,000 were purchased in another. By now, they were under the observation of police and it was not long before both men were arrested. The Applicant was identified by no less than 6 different witnesses. The case against him was overwhelming.

6. The judge took into account the guidance which is offered in R v Chan Sui-to and Another, Cr.App. 115 of 1996. Despite the Applicant's belief that this was not an appropriate case, it is one of the leading cases on the subject. The judge took into account the prevalence of such offences as these, and the proximity in time between the card thefts and the Applicant's use of them as providing an indication that he was involved with others and not merely D1.

7. The Applicant is by no means a stranger to the courts and the judge was of the opinion that his medical condition would be properly treated in prison. The judge also distinguished the role played by D1, who was a visitor to Hong Kong, by saying that he accepted that D1 had not come to Hong Kong with the intention of committing these offences, but had been drawn into them by this Applicant who he had known previously. The judge also said that on the facts that he had heard, D1 had a slightly smaller role, and accordingly took a 3-year starting point in his case.

8. For the reasons we have given, we consider that the judge's sentence to have been entirely appropriate. There is no merit whatsoever in this application and it is dismissed. We shall order that 2 months of the time spent in custody awaiting this hearing shall not count towards the Applicant's sentence.