HKSAR v. WONG PUI YAN

CACC 533/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 533 OF 2005

(ON APPEAL FROM DCCC NO. 927 OF 2005)

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REASONS FOR JUDGMENT

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Hon Woo VP (giving the reasons for judgment of the Court):

Introduction

1. On 29 November 2005, the applicant was convicted on her own plea before Judge Whaley in the District Court of three charges of obtaining property by deception, two charges of conspiracy to defraud, one charge of possessing false instruments and one charge of possessing identity cards belonging to another person.  On 19 December 2005, after considering a community service order report requested by the applicant’s counsel on her behalf and counsel’s submission on mitigation, the judge adopted a starting point of five years’ imprisonment, reducing it by a 50 per cent discount to arrive at a sentence of two and a half years’ imprisonment imposed on the applicant. 

2. The applicant sought leave to appeal against sentence.  After hearing the applicant on 7 April 2006, we dismissed the application.  Our reasons appear below.

Grounds of appeal

3. The applicant did not give any specific grounds of appeal in her notice of application save to say that the sentence is too heavy.  She appeared to rely on the matters mentioned by her counsel before the judge and comprehensively dealt with by the judge in his Reasons for Sentence, to support her application. 

The facts and the reasons for sentence

4. For considering whether the sentence is too heavy, we will summarise the relevant facts concerning the applicant and her offences chronologically, with the information provided in the community service order report and the facts admitted by her when pleading guilty.

5. The applicant was born in Hong Kong in 1971.  She is the eldest of three siblings.  When she was young, her mother separated from her father to live on the Mainland; her father was a pickpocket and the applicant and her siblings were entrusted to the care of their grandmothers.  The applicant finished Form 4 in Hong Kong and in 1989, with the financial support of her father, went to study in England, obtaining a Diploma in Hotel and Catering Studies in 1994.  She then returned to Hong Kong to work as a waitress in a hotel in Hong Kong and got married in 1998 to one of her colleagues.  She gave birth to two sons but because of differences with her husband, she left him in 2002.  Months afterwards, she met an old schoolmate, a divorcee, and started to cohabit with him and she helped him in his business.  They lived together with his 10-year old son from the previous marriage.  In 2003, she started to meet with undesirable characters in discos and in playing mahjong.  She lost money in the game and owed $7,000 to a man “Ah Fei”.  As her cohabitant was experiencing financial difficulty in his business during the SARS period, she dared not ask him for money.  Upon the instigation of Ah Fei, she committed the series of offences to which she pleaded guilty.

6. According to her admissions to the police, she used forged credit cards provided to her by Ah Fei to obtain properties by deception, which were the subject matters of Charges 1, 3 and 4.  These three charges involved using two different forged credit cards to obtain jewellery items from two jewellery shops.  The value of the three jewellery items so obtained was about $22,000.  One item was obtained on 19 November 2003 by the use of a genuine stolen credit card (Charge 1), while two items were obtained on the same day of 22 July 2004 with a forged credit card (Charges 2 and 3). 

7. She described to the police the conspiracy between her, Ah Fei and others to use forged credit cards provided by Ah Fei to buy goods and obtained services from various shops in the Mongkok area.  Between 31 July and 3 August 2004, she was personally involved in 25 fraudulent transactions by using forged credit cards, involving about $54,000.  Those were the subject matters of the two charges of conspiracy to defraud, Charges 5 and 6.  

8. She further admitted that her reward was to receive 30% of the value of the goods she purchased with forged credit cards.

9. When she was arrested on 3 August 2004, she was found to be in possession of four forged credit cards (Charge 7) and two genuine identity cards belonging to two different persons (Charge 8).  Four ladies found their identity cards or credit cards missing, and the two identity cards possessed by the applicant belonged to two of these ladies.  The reason provided by the applicant for possessing the genuine identity cards was to produce a relevant one if her identity was questioned.

10. In the course of delivering his Reasons for Sentence, the judge asked the applicant if she had told the probation officer who compiled the community service order report that she had made $100,000 out of committing the offences.  She agreed. 

11. In sentencing, the judge took into account the applicant’s age and the fact that she had a clear record.  While acknowledging that the series of crimes committed by the applicant might have been instigated by Ah Fei, the judge took the view that “there was no element at all of compulsion or undue influence exercised on her which led her to committing these offences” and that “it was her choice and hers alone to get involved and she must bear the full responsibility for making that decision.”

12. The judge also considered that the applicant being in financial difficulties was no excuse at all for committing offences as charged, nor did it even constitute mitigation such as to call for a reduction in the starting point adopted or the sentence imposed.

13. The judge appeared to have accepted the probation officer’s view that the applicant was genuinely remorseful and she stood a chance in her way of social rehabilitation, that she is not of a criminal disposition and has a motivation to reform, culminating in his accepting that the applicant complied with the criteria which are commonly relied upon as being suitable for the imposition of a community service order.  He said:

“37. It has been repeatedly stated by the courts that the use of false credit cards to purchase goods is a prevalent offence, and one that is calculated to undermine the whole elaborate system of credit which is such an essential features of modern commercial life.

38. The sentences passed by the courts must incorporate a substantial element of deterrence in the hope of deterring people like the defendant from using credit cards which do not belong to them, or false or forged credit cards, to make what might appear to be easy money.

39. The courts in Hong Kong have consistently warned that these sorts of offences will be severely dealt with.  As far back as 1991 in R v Wong Fu Keung, Cr App 5/91 Macdougall JA observed, ‘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’.

40. In HKSAR v Sun Chun LeiCr App 476/2002, the court reiterated that credit offences have to be deterred.”

14. The judge also referred to a number of cases, including HKSAR v Gui Zhiqiang, CACC 289/2005, HKSAR v Chan Wai Kin, CACC 237/2005, Chan Sui-to & Anor [1996] 2 HKCLR 128 and HKSAR v Ho Ka Yee, CACC 245/2005 on the appropriate sentence to be passed. 

15. It is only necessary to refer to guideline case of Chan Sui-to, in which the Court of Appeal stated at 134A-B:

“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 circumstances.

16. The judge took the fact that the applicant was acting as a member of a syndicate which had a driver to drive the applicant and other culprits like her to various spots where they dispersed and carried out fraudulent purchases in shops as an aggravating feature in the offences.

17. The judge also referred to the fact that the applicant had cooperated with the police, and through her efforts, the police was able to arrest Ah Fei, had him prosecuted and convicted on his own plea for a charge of forgery, a charge of possessing false instruments and another charge of possessing equipment for making a false instrument, for which Ah Fei was sentenced to a total of 32 months after plea.  He took the view that the applicant was very cooperative with the police and that she was prepared to give evidence against Ah Fei, which might have been instrumental in Ah Fei’s pleading guilty, but he did not consider her as being entitled to be treated as a “supergrass”. 

18. The applicant asked us and was explained the meaning of a supergrass.  She said that since Ah Fei knew her address and that the police had arranged meetings between her and Ah Fei, he could cause harm to her.  Apart from that, she was unable to describe what risk she would be subjected to for informing on Ah Fei.  The judge noted that the applicant had specially authorised the prosecution to disclose her assistance to the police and had expressly waived her rights for the matter to be discussed in open court.  It is plain that she does not qualify as a supergrass.

19. She also complained that Ah Fei’s sentence of 32 months’ imprisonment was lighter than hers.  One can readily appreciate the difference between the case against Ah Fei and that against her, because Ah Fei was convicted of three charges whereas she was convicted of seven charges.  Moreover, it is trite that each case depends on its own facts.  The court that sentences an accused will consider the evidence before it and the facts as admitted.  It would be unfruitful to make any comparison between two cases with different facts.

20. Considering her clear record and her great assistance to the police, the judge reduced the starting point of five years’ imprisonment by 50% to two and a half years’ imprisonment, for each of Charges 1, 3, 4, 5, 6 and 7.  For Charge 8, the possession of the two identity cards, the judge adopted a starting point of 15 months’ imprisonment.  Although he recognised that the customary sentence for this offence is 15 months’ imprisonment for a first offender after a guilty plea, he reduced this 15-month imprisonment again by one-half to reach a sentence of seven and a half months’ imprisonment.  He ordered this sentence and all other sentences to run concurrently with each other.

21. The judge had dealt with all the arguments raised by counsel on behalf of the applicant in a very detailed and well-reasoned 15-page Reasons for Sentence.  We do not find that the sentence he passed on the applicant is either wrong in principle or in any way manifestly excessive.  All the grounds on which the applicant can rely in mitigation had been addressed on by her counsel to the judge and had been fairly and justly dealt with. 

Conclusion

22. In the circumstances, the application for leave against sentence must be dismissed.