HKSAR v. CHAN CHO HEI JOE

HCMA274/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.274 OF 2000

(ON APPEAL FROM SPCC NO.6200 OF 1999)

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J U D G M E N T

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1. The appellant was convicted on 12 January 2000 of one charge of possession of an identity card relating to another person, one charge of possession of a false instrument, being a false credit card, and one charge of conspiracy to defraud. He was sentenced on 26 January 2000 to four months' imprisonment in respect of the first charge, four months' imprisonment in respect of the second charge and 12 months' imprisonment in respect of the third charge, all to be served consecutively.

2. The appellant appealed the conviction and sentence, but on the day of the hearing of the appeal abandoned his appeal against conviction, and upon receipt of that abandonment, the appeal against conviction was dismissed. He proceeded with his appeal against sentence.

3. His grounds of appeal were that the magistrate had erred in determining that all the sentences should be served consecutively when all three offences arose out of the same transaction and involved similar charges over the same period of time; and that he further failed, in assessing the appropriate starting point for the third charge, to consider the size of the operation, the planning and other dimensions to it. It was argued by Mr Pang, for the appellant, that the sentence in relation to the third charge was manifestly excessive.

4. The facts were that on 15 September 1999, at about 3 a.m. in a shop called Ad-mart store in Hung Hom, a man entered the premises and sought to purchase a notebook computer, it was out of stock and he eventually agreed to buy a Motorola mobile phone. He produced a Chase Master Card which the shop assistant suspected was not a valid card. She said that she would have to telephone the credit card centre for approval, the man then demanded the return of the card. When she insisted on making the call, he walked behind the cashier counter and tried unsuccessfully to snatch the card from her. He then walked away and she called the police.

5. The police came to the vicinity and at a nearby bus-stop found somebody who generally fitted the description of the man in the shop. That was the appellant. It was later established that he had not entered the shop, but in two confessions - which the magistrate investigated as to their voluntariness and found to be admissible - he admitted that an identity card in the name of another person and a credit card, which was false, found in his possession were given to him by the man who had entered the Ad-mart store to hold, and that he was acting as a lookout for that man. The magistrate, in arriving at his sentence, said this :

"... Taking into account the clear record and other mitigating factors, I believed the correct sentence in total was one of 20 months' imprisonment and I imposed consecutive sentences of 4 months' imprisonment on charge 1, 4 months' imprisonment on charge 2, and 12 months' imprisonment on charge 3."

6. It is to some degree unhelpful to appellate courts where no starting point is given in respect of the sentence so that the final determined sentence can be seen within the proper context of the facts of the case. In this particular case, Miss Sin for the respondent argues that the sentences on the first and second charges are manifestly inadequate. I am referred, in respect of those cases, first of all to R. v. Shamim Nawaz Magistracy Appeal No.804 of 1993 and to the later case of HKSAR v. Chan Tsan Fai Magistracy Appeal No.312 of 1998. In both of those cases, the judge on appeal from the magistrates court dealt with what was called possession simpliciter of an identity card belonging to another person, i.e. possession of a card where no sinister or criminal overtones were in existence and in circumstances where no immigration question arose. They were offences quite separate from any immigration consideration.

7. This case falls within the ambit of those two cases with one exception, that is the case presently before me has an overtone of criminality which makes it of a different nature and quality than the facts considered in Shamim Nawaz and Chan Tsan Fai. This case is more akin to R. v. Kwok Hoi Ming, Magistracy Appeal No.188 of 1991. In that case, Bewley J said :

" The gravity of this offence, when committed by Hong Kong residents, may vary enormously depending on the facts of each case. There will however usually be some explanation for possession of the identity card. Here, once the first explanation had been proved to be a lie, no further explanation was forthcoming.

In those circumstances a magistrate is entitled to take a sinister view of the reason for possessing the identity card. In my view a sentence of nine months on the facts of this case, following a guilty plea, was entirely justified and I dismissed the appeal."

8. In the matter presently before me, the magistrate had more than silence from which to infer a sinister view for the reason of possession of the identity card. The card was found in conjunction with a false credit card and by a man who was standing watch whilst his confederate went into a shop to obtain, by fraud, goods with a further forged card. In this particular circumstance, the magistrate would have been entitled to have taken as a starting point 12 months' imprisonment after trial, which should have been reduced to eight months' imprisonment by virtue of the plea.

9. In respect of the second charge, that of possession of a false credit card, I accept the comments made by Macdougall JA in R. v. Wong Fu Keung, Cr App No.5 of 1991 :

"It is a matter of notorious fact that the illegal use of credit cards has become widespread. Those who are engaged in this type of activity can expect to be dealt with severely by the court"

and further the comment by Cross & Cheung, Sentencing in Hong Kong, 3rd Edn, at page 498 :

"Immediate terms of imprisonment are the norm [for possession of false credit cards]. These regularly start at 12 months and may extend to 6 years: R v So Chung-kwong Cr App 455/93."

I accept that authority and that the magistrate would have been entitled to take for this offence the starting point of 12 months' imprisonment, reducing it to eight months' imprisonment by virtue of the mitigating factors which were before him. Those factors, of course, would have been taken into account in respect of the first charge in the reduction of 12 months to eight months.

10. In respect of the last count of conspiracy, I am referred principally to two cases, the first being HKSAR v. Ma Choy Yu, Magistracy Appeal No.608 of 1999. There, in respect of a conspiracy by a number of persons to use credit cards at particular shops where it was ascertained how much money could be taken on a card, but no money was actually taken. The judge on appeal held that a sentence of 15 months' imprisonment after trial was appropriate in respect of those offences. Further, I am referred to R. v. Chan Sui-to and Another [1996] 2 HKCLR 128. There, Yang CJ (as he then was) said this :

"Allowing for the different facts and varying degrees of culpability, it is impossible to formulate a set of principles of sentencing from those decisions. [He having reviewed previous decisions.] We think however it would be helpful to the courts if they were guided by some criterion. We would therefore suggest that an accused who plays an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment and, without an international dimension, should receive a sentence of five to six years after trial. Sentences may be adjusted upwards or downwards according to the circumstances."

11. In the case presently before me, the accused played an active but not necessarily a key role - he was a lookout; he was a holder of illegal implements, the only purpose of which could be for criminal offences; it was a less than medium size operation, in common with the words of Yang CJ, there was no elaborate planning and no elaborate equipment, there was no international dimension. The learned magistrate in this particular case held that 12 months' imprisonment to be an appropriate sentence.

12. I would have taken as an appropriate starting point a period of 18 months' imprisonment and reduce it to 12 by virtue of the mitigation which was placed before the magistrate.

13. I will therefore allow this appeal to this extent. The sentence in respect of the first charge is set aside and a sentence of eight months' imprisonment is imposed in lieu thereof. The sentence on the second charge is set aside and a sentence of eight months' imprisonment is imposed in lieu thereof. The sentence on the third charge is undisturbed.

14. As to the totality of the sentence to be passed upon the accused, here the magistrate was in my view entirely correct although he arrived at it by a manner which is not appropriate. In the circumstances, a sentence of 20 months' imprisonment in totality was appropriate. The first and second charges are ones which occurred at the same time, at the same place and involved similar criminal activity. It is appropriate that the sentences on the first and second charges be concurrent. The conspiracy, being the third charge, was a separate matter. It did not involve either the credit card or the identity card used in respect of the first and second charges and I think it is inappropriate, given that factor and the totality principle, that sentence on the third charge be consecutive to those on the first and second charges. The totality of the sentence passed upon the appellant is therefore undisturbed.