HKSAR v. CHAN KA CHUNG

CAC C 379/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 379 OF 2010

(ON APPEAL FROM DCCC NO. 976 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Hartmann JA (giving the Reasons of the Court):

Introduction

1.  On 6 October 2010, in the District Court before Deputy District Judge Johnny Chan, the applicant pleaded guilty to the following three charges: first, a charge of attempting to obtain property by deception; second, a charge of using a false instrument, and third, a charge of theft.

2.  In respect of both the first and second charges, the judge took as his starting point a term of imprisonment of four years and six months’ imprisonment.  In respect of the third charge, he took as his starting point a term of six months’ imprisonment.  He reduced the terms of imprisonment by one-third to take account of the applicant’s pleas of guilty, the sentences imposed in respect of the first and second charges being three years’ imprisonment and, in respect of the third charge, being four months’ imprisonment.  The judge ordered that the three sentences should be served concurrently, a total sentence therefore of three years’ imprisonment.

3.  The applicant sought leave to appeal that sentence on the basis that it was manifestly excessive.

4.  Having heard submissions, we granted the application for leave to appeal and, treating the application as the appeal itself, ordered that the terms of imprisonment imposed in respect of the first and second charges be reduced from three years each to two years and four months’ imprisonment.  We did not alter the sentence imposed in respect of the third charge.  Nor did we see it necessary to interfere with the judge’s order that all three sentences should be served concurrently.  In the result, it was ordered that the applicant serve a total of two years and four months’ imprisonment.

5.  We said that we would give our reasons later and do so now.

The evidence

6.  In respect of the first charge, that of attempting to obtain property by deception, the evidence was as follows.

7.  On 23 February 2010, the applicant went into an international fashion store in Harbour City, Tsim Sha Tsui.  He had with him a credit card in the name of a third party (the ‘first card’).  As he later admitted, he understood that the first card was forged.  The applicant sought to purchase goods valued at just under $14,000, tendering the first card in payment.  The transaction, however, was unsuccessful.  The card was returned to the applicant who left the store.

8.  In respect of the second charge, that of using a false instrument, the evidence was as follows.

9.  A few minutes after the commission of the first offence, the applicant returned to the store.  On this occasion, he carried with him a second credit card (the ‘second card’) which bore the same name as the first card.  As he later admitted, the applicant understood that this card too was forged.  The applicant tendered the second card in order to purchase the same goods that he had unsuccessfully attempted to purchase earlier.  This transaction was also unsuccessful.  The second card was returned to the applicant who left the store.

10.  The applicant’s conduct, however, had aroused the suspicions of staff at the store who telephoned the police.  The police arrested the applicant in the vicinity of the store.

11.  At the time of the arrest, the applicant did not have the first card in his possession but he was carrying the second card.  Under caution, the applicant said that the first and second cards had been given to him by a man named Ka Lok on the basis that they would share the re-sale proceeds of any goods that they were able to obtain by using the cards.  The applicant said that, when the use of the first card proved unsuccessful, he returned it to Ka Lok who gave him the second card.

12.  The first card was never recovered.  The second card was forensically examined and proved to be a forgery.

13.  In respect of the third charge, that of theft, the evidence was as follows.

14.  At the time when the applicant was arrested by the police a further credit card (the ‘third card’) was found in his possession.  This card bore the name of a third party.  The applicant said that he had found it some 12 months earlier.  The card was proved to be genuine, the cardholder being a Hong Kong resident.  There was no evidence that the applicant had used the card to purchase goods or had attempted to do so.  At trial, in the course of mitigation, the applicant’s counsel said that the applicant had kept it as some kind of ‘status symbol’ without any intention of using it.

The judge’s assessment of sentence in respect of the first two charges

15.  In respect of the these two charges, the judge accepted that the applicant had been a member of a purely local, small scale criminal operation involving the use of two credit cards, both used in an attempt to obtain the same set of goods valued at close to $14,000.

16.  In looking to an appropriate sentence, the judge had reference to HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517, a judgment of this Court (differently constituted) in which it was held that an overall starting point of three years’ imprisonment for a small scale credit card fraud involving a sum of less than $9,000 was not manifestly excessive.  While the judge was correct to look to that authority, regrettably he fell into error by reading it to mean that, in respect of a purely local small-scale operation, a term of imprisonment of three years after deduction of any relevant discount was appropriate.  It was on that basis that the judge added a third to the three years in order to arrive at the appropriate starting point: hence his stated starting point of four years and six months in respect of both the first and second charges.

17.  That three years is normally an appropriate starting point in respect of purely local, small scale criminal enterprises involving a limited number of credit cards has been confirmed in a later judgment of this Court: HKSAR v Tu I Lang (unreported) CACC 464/2006.  In giving the judgment of the court in that case, McMahon J gave a brief overview of earlier authorities:

“In HKSAR v. Lau Pui Hang (unreported) CACC 393/2003, this Court, differently constituted, concluded that in circumstances such as those before it where only two credit cards were involved and the operation could be described as relatively small-scale falling below the “medium-sized operation” described in R v Chan Sui To (1996) 2 HKCLR 128, a starting point of three years’ imprisonment was appropriate: see also HKSAR v. Watt Siu Hung (unreported) CACC 93/2001 where the offences concerned the use of two forged credit cards and the court accepted it was “a relatively minor credit card fraud case”, that case being approved in HKSAR v Cheung Ka Wo Johnny[supra]. Small scale credit card offences cannot be subjected to strict guidelines. That is because the facts of such offences can vary significantly in a number of ways, the number of cards possessed or used being perhaps the most obvious factor.

Where the facts of the offence point to a small, unsophisticated operation, involving only one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation,  then a starting point of three years’ imprisonment or less would be appropriate.”

18.  While there can be no strict sentencing guidelines in respect of small-scale operations of the kind in which the applicant in the present case admitted participation, it is apparent that, if the sentencing judge had not misunderstood the effect of HKSAR v Cheung Ka Wo Johnny, he would have taken three years and not four years and six months as his starting point.

19.  That, however, is not an end to the matter.  As the judge noted in his Reasons for Sentence, the applicant has a very bad criminal record dating back to 1988.  His list of convictions includes numerous counts of theft or attempted theft, of going equipped for stealing, of common assault, criminal damage, resisting arrest and offences too of breaching his terms of probation and a community service order imposed on him.

20.  This Court has said on a number of occasions that persistent offenders who show no interest in rehabilitating themselves must expect to face longer sentences.

21.  In respect of the present case, the applicant’s persistent offending demanded an enhancement of the overall starting point.  We considered that an appropriate enhancement was one of six months’ imprisonment.

22.  In respect of the first and second charges, therefore, it was our judgment that the correct starting point should have been one of three years and six months’ imprisonment.  A one-third reduction of those sentences to take account of the applicant’s pleas of guilty resulted in sentences of two years and four months’ imprisonment.

23.  It was not argued that the sentence of six months’ imprisonment imposed in respect of the third charge was manifestly excessive or in any way wrong in principle.

24.  The judge at first instance, in looking to the totality of the applicant’s moral culpability, determined that the sentences imposed in respect of all three sentences should be served concurrently.  We had no reason to disagree.

25.  In the circumstances, for the reasons given, the applicant’s overall sentence was reduced from three years to two years and four months.