HKSAR v. CHEUNG KA-WO JOHNNY

CACC 136/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 136 OF 2001

(ON APPEAL FROM DCCC 181 OF 2001)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Background

1. On 27 March 2001, the Appellant pleaded guilty in the District Court before Deputy Judge Ma to three charges of using a false instrument contrary to section 73 of the Crimes Ordinance, Cap. 200, and one charge of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap. 210. He was sentenced on the following day to concurrent terms of two years' imprisonment on each charge.

2. On 15 August 2001, the Appellant was given leave to appeal when he appeared before Keith JA on the grounds that it was "arguable that an overall starting point of three years' imprisonment was manifestly excessive for a credit card fraud involving less than $9,000 in which the (Appellant) was not alleged to have been a member of a larger syndicate".

Prosecution's case

3. The offences were committed on 27 May 2000. They related to the fraudulent use of two counterfeit credit cards. Briefly, the prosecution alleged that the Appellant obtained cosmetics worth $8,541 at a department store in Quarry Bay on 27 May 2000, using what purported to be a genuine Mastercard and a genuine Visa card to pay (charges 1 to 3). After this, he went to a second department store and attempted to purchase goods (charge 4) valued at over $3,000 using the same Visa card that he had tendered earlier at the first shop. The staff suspected the card was counterfeit and security personnel were alerted. When the Appellant attempted to make his escape, he was arrested. Later, in an interview with police, he said that he had acquired the credit cards when he picked up someone's wallet at the exit of an MTR station.

The appeal and other decisions considered

4. It was submitted by Mr Mughal, on the Appellant's behalf, that the sentence of two years' imprisonment was manifestly excessive. He contended in particular that the overall starting point of three years' imprisonment was excessive and that the judge had failed to give sufficient weight to the various mitigating factors which had been advanced on the Appellant's behalf.

5. One aspect which was clearly not in the Appellant's favour related to his previous record which was comprised of six convictions relating to vice and gambling offences, possession of an offensive weapon and trafficking in people to or from Hong Kong. The most favourable point to be made out of this woeful background is that there was nothing similar to the present offences amongst the Appellant's previous transgressions.

6. We do not need to recite the careful analysis given to the sentencing process by the judge. It was a model of accuracy and it is plain from the concise reasons he gave for the sentence he imposed that he had considered each and every point which was raised, having had the benefit of being referred to two judgments of this court of relevance to credit card offences.

7. We have been greatly indebted to Mr Paul Madigan, on behalf of the Respondent, for the research he has conducted into a number of further judgments relating to the use of false or counterfeit credit cards. He was right to point out that the only previous case in which guidelines for sentence have been set out was R v Chan Sui-to [1996] HKCLR 128 to which the judge in the present case had referred. Significantly, and somewhat obviously, it was stated in that appeal that:

"The sum of money involved is of course only one of the factors to be taken into account. It is not even the most significant factor."

8. This passage was referred to in HKSAR v Hung Ping-wah, CACC 241/1997 and 488/1997 (unreported) which was also the subject of reference by the judge when passing sentence in the present case. In Hung Ping-wah, the total sum involved related to goods valued at $7,000. The Appellant pleaded guilty to two charges of using a false instrument and a third charge of possession of forged instruments. There was, as in the present case, no suggestion of an international dimension and no evidence of a syndicated operation. An overall starting point of four years for the two charges of using a false instrument was regarded by this court as having been "on the high side", but it was said to have been "not manifestly excessive". There was, however, the further factor in that case, namely, that following the appellant's arrest, he was found, as Mr Mughal was quick to emphasise, to have had ten more false credit cards in his possession, reflected in the third charge, which no doubt caused the judge in the present case to adopt the lower starting point of three years' imprisonment.

9. A further example which reveals this court's approach to sentence for offences related to false credit cards is to be found in HKSAR v Watt Siu-hung, CACC 93/2001 (unreported). In that case, the value of the goods obtained on the two forged credit cards was slightly in excess of $3,000. The judge took a starting point of three years for these offences which the court again said was on the high side but was not manifestly excessive. The court also commented that:

"There was every reason to believe that but for his arrest he would have continued to use the credit cards."

10. The sentiment in relation to the potential losses involved in offences of this kind was specifically addressed in HKSAR v Ng Swee-thiam & Ors [2000] 1 HKLRD 772. The facts of that case bear little relationship to the present case as the offences which were disclosed were far more grave. However, the court commented (at p. 778) that the amount proved to have been lost by the fraudulent use of credit cards:

"pale(s) into insignificance when consideration is given to the potential for losses in the future."

The court in that case went on to state that:

"It is this potential for losses which is the most important consideration."

11. It is well known that in this jurisdiction severe sentences are given to those who commit offences of the kind with which we are presently concerned as a deterrent to others who are like-minded. One justification for this is that the integrity of the credit card system is highly important in this day and age and the confidence which people, as Mr Madigan pointed out in the course of his argument, are entitled to place on this aspect of modern commercial life is necessarily eroded by others who attempt to beat the system by fraudulent methods (see: HKSAR v Yau Wai-chun, CACC 417/2000 (unreported)).

12. We can well understand in this case why legal aid was initially refused to the Appellant. We have been unable to find any merit in this appeal. We do not, of course, in any way criticise Mr Mughal for seeking to argue that the sentence should be reduced bearing in mind that Keith JA had given leave to appeal.

13. This appeal is dismissed.