HKSAR v. YIP WAN TAM

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

1998, No.246
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The appellant in this matter pleaded guilty to four charges of obtaining property by deception, to one of using the identity card of another person and to one of breach of condition of stay. The four charges of obtaining property involved the use of a stolen credit card. Leave to appeal against sentence was granted to her on 12th August 1998.

2. On 19th November 1997, she was one of a group of four persons who used a stolen card four times to obtain just over $40,000 worth of goods. She accompanied a male person who actually used the card when he was making the purchases. She claimed in mitigation that she was only to get $1,000 from the proceeds and Deputy Judge Wahab appears to have accepted this when sentencing. His original starting was 3 1/2 years, which he reduced by one-third for plea to 2 years and 4 months. He then reduced that by a further 4 months because of the clear record of the applicant.

3. In our view the overall sentence of 24 months on each charge concurrent was lenient. The applicant was perhaps fortunate that he refused to enhance the sentences under the Organized and Serious Crimes Ordinance. Had he done so, she could well have faced an enhancement in the region of 50%.

4. Charge 8 alleged that she had used the identity card of another person when endeavouring to rent premises.

5. Charge 9 involved the overstaying of her two-way permit, which had expired not long before the offences, i.e. on 4th November 1997. The judge sentenced her to 15 months and 3 months on those charges, and those terms of imprisonment were ordered to be consecutive to each other and to the overall sentence of 2 years on the other charges.

6. When sentencing. the judge said:

"After a Newton enquiry, I rejected the defendant's explanation that she used the identity card to rent premises for someone from mainland China who would visit Hong Kong in the future. I concluded the defendant used the identity card to further her illegal stay in Hong Kong, her visa to remain having expired more than 10 days earlier. Where there is a causal link between the offence and the defendant's status in Hong Kong, for example to obtain employment or otherwise to further her remaining in Hong Kong, the starting point of 15 months' imprisonment is not improper on a plea of guilt from a defendant hailing from mainland China and having a clear record."

7. The judge then referred to a number of decisions in magistracy appeals which supported this approach.

8. As to Charge 9 the overstaying he said:

"During the Newton enquiry, the defendant admitted to the fact she knew her overstaying was illegal but she made a conscious decision to do so. Her stated reasons for overstaying have been rejected by me. For this offence, I send the defendant to prison for 3 months."

9. We are concerned by the making of that sentence consecutive to the sentence of 15 months. While it was a separate offence, it seems to us that, given the way in which the judge justified the imposition of 15 months on the charge of using the identity card of another, he was, in effect, punishing her for overstaying when imposing that sentence. We are satisfied that he was, in principle, wrong to make the second sentence of 3 months consecutive. In our view, those two sentences should have been made concurrent.

10. To that extent this appeal is allowed. The sentences imposed are varied to the extent that the three months is ordered to be served concurrently with the 15 months but those two concurrent sentences are ordered to be consecutive to the concurrent sentences of 24 months imposed on the obtaining property by deception charges. The appellant will, therefore, serve an overall sentence of 39 months.