HKSAR v. MAN TIN ON

CACC 299/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 299 OF 2000

(ON APPEAL FROM DCCC 441 OF 2000)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. On 16 June 2000, the Applicant (D3) pleaded guilty in the District Court before Judge Davies to a charge of attempting to obtain property by deception contrary to section 17(1) of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200. On the following day, he was sentenced with his co-defendants (D1 and D2) on this charge to a term of two years and eight months' imprisonment against which D3 now seeks leave to appeal. For reasons which we shall turn to later, the Applicant was sentenced on the same occasion to a consecutive term of eighteen months' imprisonment on a second charge of obtaining $200,000 from another victim of his deception, so that in all D3 received a sentence of four years two months. There is, however, no application for leave to appeal in relation to the second sentence. This is hardly surprising in view of what we shall have to say about it.

2. The deception practised by D3 and his confederates was in both charges something with which this court has become familiar. Curiously, it was familiar also to the victim of the offence in charge 1. It was this last factor which led to the downfall of the gang's scheme. The judge described events relating to that charge in this way:

".... these three defendants were in Hong Kong on visitors' permits from mainland China.

On 24 March 2000, Miss Ting Chun-yu was approached in the street by D1 who asked her the way to the nearest garage, and to help him watch over some goods in his vehicle for a reward of $200. By coincidence, Miss Ting had been approached in a similar manner and had been cheated out of money only three days earlier, and so she decided to pretend to co-operate. She went with D1, apparently in the direction of where Dl's car was parked. On the way, they met up with D2 and subsequently with D3.

The deception was that D1 had very expensive batteries that he was prepared to sell at a cheap price, and that Miss Ting should make a joint investment with D2 by purchasing the batteries and then selling them to D3 at a substantial profit. Miss Ting continued to play along and agreed to go to the bank with D1 to get the money for the purchase of the batteries, a sample of which she had been shown.

On the way to the bank, by another remarkable coincidence, she happened to see the same police officer to whom she had reported the previous similar case of deception, and she surreptitiously made him aware that the same deception was being practised upon her again. She withdrew $10,000 from her account and she and D1 left the bank to meet up with D2. However, now, they were under police surveillance. D1 and (the victim) met with D2 and discussed the purchase. D3 was observed walking in the vicinity. Instructions were then given to arrest all three defendants and this was done, notwithstanding D1 and D2's attempts to escape.

When D3 was stopped, a sample 'battery' was found on him. The search of a plastic bag he was carrying revealed 999 more 'batteries'. The so-called batteries were in fact button cells with an estimated market value ranging between $5 and $15. In discussion, D3 had priced them at $468 each but had offered to buy them at $300 each.

The defendants had, by this deception, endeavoured to obtain $10,000 from Miss Ting. In the event Miss Ting had cleverly deceived them and had achieved their capture by the police. She is to be commended for her spirited actions."

3. We would say in relation to her actions that they were quite remarkable. This lady had used very great presence of mind and we hope that such commendation has already been passed to the victim and, if it has not, it should be.

4. The judge went on to take a starting point in relation to this first charge of three years' imprisonment for each of the defendants, reducing this by one-third to take into account the mitigation and, in particular, the pleas of guilty which had been entered by each of them, noting that D3 had committed a similar offence earlier. This was represented by the second charge on the charge sheet.

5. In arriving at his starting point, the judge had been supplied with statistics which highlighted the increase and prevalence of this type of street deception over the past few years. He described these statistics as "depressingly impressive". Having seen the figures for ourselves, we can see at a glance that the judge's expression was entirely apt. With that in mind, the judge concluded that an enhanced sentence under the provisions of section 27 of the Organised and Serious Crimes Ordinance, Cap. 455, was justified to the extent of an increase by one-third. Following the procedure in HKSAR v Tam Wai-piu (1998) 4 HKC 291, he then increased the sentence to two years and eight months. The judge had adopted with precision the steps to be taken in reaching the appropriate sentence in these circumstances.

6. The Applicant in his homemade grounds complained that the sentence was too long and, both in those grounds and in what he has said today in court, he suggested that others who had committed similar offences had received shorter sentences than he had done. He also complained that the statistics on which the judge was relying were an inappropriate guide for considering an increase in this kind of street crime. He complained that it was unreasonable to enhance his sentence.

7. We can say straightaway that we found no merit in his application in the sense that we have found no reason for interfering with the sentence imposed by the judge. However, before we complete what we have to say about this case, we note that in respect of the second charge the judge had taken a starting point of three and a half years. That charge related to the obtaining of $200,000 from another victim of D3's deception. This was particularised in the charge as having been carried out by the false representation that "700 pieces of battery-like objects were expensive electronic components and expensive spare parts for vehicles". In other words, this offence was a great deal more serious in terms of the substantial loss to the victim than the attempt in the first charge. The judge reduced his starting point on the second charge to a term of eighteen months' imprisonment in view of the pleas of guilty and other factors he had considered. This seems to us to have been a surprising decision given that the second charge was a very much more serious offence where the deception not only involved a large sum of money but had been successfully completed.

8. The judge arrived at his sentence of eighteen months by saying that he reduced the sentence from his starting point of three and a half years to twenty-eight months' imprisonment by reason of D3's plea of guilty. Bearing in mind the totality principle, he went on to say that this could properly be reduced to twelve months. He then enhanced that to eighteen months pursuant to the Serious and Organised Crimes Ordinance. This was, in our view, a wholly inappropriate application of the totality principle. It resulted in a sentence on the second charge which falsely reflected the gravity of that offence. The judge should have imposed the correct sentence for that charge and then given effect to the totality principle by ordering the sentences to run concurrently or consecutively, or partly one and partly the other as was in the circumstances appropriate. In the event, the error on the part of the judge was one which fell in D3's favour and cannot assist his application. It was for this reason that we said earlier in the judgment that it was hardly surprising the Applicant made no complaint about his sentence on the second charge.

9. For the reasons we have given, the application is dismissed.