HKSAR v. DHALIWAL JASPREET KAUR AND ANOTHER

CACC 337 /2018

[2019] HKCA 1205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 337 OF 2018

(ON APPEAL FROM DCCC NO 539 OF 2018)

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.  On 2 November 2018, the two appellants (“A1” and “A2”) pleaded guilty to two joint charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charges 1 and 2) before Deputy Judge Kathie Cheung (“the judge”) in the District Court. A1 further pleaded guilty to four other charges of theft (Charges 3, 4, 5 and 6), which had been laid against her alone. After hearing mitigation on the same day, the judge sentenced A1 to an overall term of 23 months’ imprisonment and A2 to an overall term of 19 months’ imprisonment, further making a compensation order in favour of the credit card company in the sum of $7,714.

2.  On 24 July 2019, both appellants were granted leave to appeal against their sentences by the Single Judge.  At the same time, they were granted bail pending their appeals.

3.  On 16 October 2019, this Court allowed the appeals against sentence and reduced the terms of imprisonment of both appellants so as to allow their immediate release.  We indicated that we would hand down the reasons for our decision in due course.  These are our reasons.

The facts admitted by the appellants

4.  In the early hours of 13 March 2017, PW1 went to ‘The China Bar’ (“the Bar”) at the Ground Floor of 44 D’Aguilar Street, in Central.  In her handbag at the time was her credit card issued by Aeon Credit Service (Asia) Company Limited (“the credit card”).  PW1 remembered leaving her handbag unattended on the floor at about 3:30 am when she got up to dance.  She left the Bar with her handbag at about 6:30 am, but it was not until about 3:30 pm that same afternoon that she discovered her credit card missing. 

5.  The two appellants were arrested.  Under caution, A1 admitted that she had taken the credit card after finding it on a bar table, after which she and A2 used it to buy drinks at the Bar.  She further claimed that she had thrown it away after using it.  A2 made similar admissions to the effect that she and A1 had found the credit card on a bar table, bought drinks with it and then discarded it. 

6.  The theft of the credit card by the appellants constituted Charge 1, whilst the use of it to buy drinks at the Bar costing $254 constituted Charge 2.  Charges 3 to 6 were concerned with the later use of the credit card by A1 in respect of four other transactions on 13 March 2017, the facts of which may be summarised as follows. 

7.  In the early morning of that day, a CCTV camera installed at the Chelsea Hotel, situated in Hanoi Road in Tsim Sha Tsui, captured A1 filling in a form in order to check into the hotel.  The room charge of $550 was settled with the credit card (Charge 3).  The credit card was then later used to settle a transaction of $160 for a meal at the Butchers Club, also in Hanoi Road in Tsim Sha Tsui (Charge 4).  It was further used to purchase two telephones, one costing $3,750 in a shop called “Xin Hui” in Ap Liu Street in Sham Shui Po (Charge 5); the other costing $3,000 in a shop known as “Essence Digital”, also in Ap Liu Street in Sham Shui Po (Charge 6).

8.  A1 admitted under caution that she had used the credit card to make the relevant payments for the purchases referred to in Charges 3 to 6.

Mitigation and sentence

9.  A1 was just over 21 years of age at the time of sentence (although 19 at the time of the offences) and single.  Her father was deceased, leaving her mother and three siblings with whom she lived.  She was in her second year of studying for a higher diploma in Tourism and Hospitality. 

10.  A2 was aged 23 at the time of sentence (although just over 21 at the time of the offences) and also single.  She lived with her stepfather, her mother and two siblings.  She worked as a clerk earning about $12,000 a month, a job which we were informed she has since lost as a result of her imprisonment. 

11.  A2 is the cousin of A1 and both had clear records prior to the commission of the offences.  It was submitted during mitigation that the appellants were celebrating the birthday of A1’s mother at the Bar, where they had had in the course of the evening a considerable amount to drink; as a result, the offences were committed opportunistically when they came across someone else’s credit card lying on a bar table inside the Bar. The appellants were willing to compensate the credit card company for the losses incurred. 

12.  The judge considered that a Community Service Order was not an appropriate option for credit card offences, which merited deterrent sentences.  Accordingly, she did not call for any reports prior to sentencing.  In respect of Charge 1, she adopted a starting point of 6 months’ imprisonment for both appellants.  On Charges 2 to 6, the judge referred to a number of decisions of this Court.  She noted that the Court in HKSAR v Tu I Lang[1] had held that in the case of a small unsophisticated operation involving only one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years’ imprisonment or less would be appropriate; and that the same principles and considerations would apply where genuine credit cards were fraudulently used: see HKSAR v Lam See Chung Stephen[2]. 

13.  The judge said that the credit card in question had been used on five occasions, without any marked degree of planning or organisation, in order to obtain goods or services, the value of which was not high.  Accordingly, she adopted a starting point of 2½ years’ imprisonment for A1 in respect of each of the five theft charges (Charges 2 to 6), and 2½ years’ imprisonment for A2 in respect of Charge 2.  The judge gave the appellants a full one-third discount for their pleas of guilty and reduced the starting point for Charge 1 from 6 months’ to 4 months’ imprisonment, and for each of the remaining Charges from 30 months’ to 20 months’ imprisonment.

14.  The judge regarded the payment of restitution as a mitigating factor, which entitled each of the appellants to a further 3-month discount on the sentence on each charge.  Accordingly, the resulting sentence on each of Charges 2 to 6 became 17 months’ imprisonment (from 20 months’ imprisonment).

15.  The judge considered that an overall sentence of 23 months’ imprisonment was appropriate to reflect A1’s greater criminality. In order to achieve that objective, she ordered 2 months of the 4-month sentence on Charge 1 to run consecutively to the sentence of 17 months’ imprisonment on Charge 2, thus making 19 months’ imprisonment, with a further consecutive sentence of 1 month’s imprisonment for each of Charges 3 to 6, thus making 23 months’ imprisonment in all.

16.  As for A2, the judge considered that a total sentence of 19 months’ imprisonment would be sufficient to reflect her overall criminality.  To achieve that objective, she ordered that 2 months of the 4-month sentence on Charge 1 should run consecutively to the sentence of 17 months’ imprisonment on Charge 2, thus making 19 months’ imprisonment in all.

17.  The judge did not consider that there was any basis for any suspension of the sentences of imprisonment.  Finally, she made a compensation order of $7,714 in favour of Aeon Credit Service (Asia) Company Limited.

Grounds of appeal

18.  Mr Shek, counsel for A1, has advanced three grounds of appeal.  He argues that the judge had failed sufficiently to bear in mind A1’s young age at the time of the offences and to consider at least the spirit of section 109A of the Criminal Procedure Ordinance, Cap 221; given that A1 was 19 at the time of the offences and just over 21 years of age at the time of her sentence (Ground 1).  The judge had further failed to apply her mind properly to the question of suspending the sentence of imprisonment (Ground 2).  Finally, he argued that the overall sentence passed on A1 was manifestly excessive (Ground 3).

19.  Mr Thomson, counsel for A2, similarly advanced three grounds of appeal.  By Ground 1, he argued that since the amount of money involved in Charge 2, namely $254, was very low, the offence was similar to a minor theft.  Further, since there was lack of evidence to show that she had taken the credit card or purchased the drinks herself, a starting point of 2½ years’ imprisonment on that Charge was excessive.  By Ground 2, he complained that the sentence received by A2 in respect of Charge 2 failed to indicate her subordinate role in the offence.   By Ground 3, he averred that the judge was wrong to reject the options of a Community Service Order or a suspended sentence, bearing in mind that A2 was only just over 21 at the time of the offences.

Respondent’s submissions

20.  Mr Man, on behalf of the respondent, submitted that, whilst A1’s age was a powerful factor in determining sentence, the judge was nevertheless correct in imposing a deterrent sentence on her for cases of credit card fraud.  A suspended sentence was inappropriate since it did not properly reflect the seriousness of the offences in question.  Whilst acknowledging that the overall sentences of 23 months’ imprisonment on A1, and 19 months’ on A2 were on the high side, he contended that they were not manifestly excessive or wrong in principle.

Discussion

21.  For many years, the courts in this jurisdiction have for sound policy reasons taken a strong line in sentencing for the illicit use of forged or stolen credit cards.  In R v Kwan Ying Ho^[3], credit card fraud was described by Litton JA (as he then was) as “an insidious poison in the community.  It affects a large number of citizens.  It erodes the credit card system and damages Hong Kong’s standing in the international community”.  In HKSAR v Leung Pui Shan^[4], Stock JA (as he then was) described credit card offences as “a running scourge”, which were to be treated seriously and attract deterrent sentences.

22.  Although the courts have adopted a common sentencing approach that for “a small unsophisticated operation, involving only one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, … a starting point of three years’ imprisonment or less would be appropriate”, they have refrained from setting out more detailed guidelines for the fraudulent use of credit cards. As the Court in HKSAR v Loh Joo Hooi^[5] explained:

“In this area of sentencing, the circumstances in which such an offence might be committed are myriad; from the opportunistic use on one occasion of a single genuine credit card belonging to someone who has mislaid it, in order to procure goods of not great value, to the syndicated manufacture and proliferation across the border of numerous forged credit cards with significant losses to individuals and businesses. How a judge views the criminality of a particular defendant so as to arrive at an appropriate starting point depends on where, in that range of circumstances, the case before him falls. There are a number of factors which bear on that determination, which are set out in the authorities: see, for example, R v Chan Sui-to^[6].”

23.  Given the variety of circumstances in which credit card offences may be committed, it is perhaps worth reminding ourselves of the passage in Stock JA’s judgment in Leung Pui Shan, which followed his enjoinder that credit card offences should be deterred and treated seriously:

“But sentencing is an art which must carefully be moulded not only to the category of offence but to the offender. There is a danger of sentencing becoming over-mechanical with too little regard for unusual circumstances that might arise in relation to the commission of particular offences and too little regard to circumstances peculiar to the offender. Experience suggests that mitigation advanced sometimes takes the form of a mantra in our courts; with the courts being told of the age, health circumstances and number of an offender’s family members and of other matters which have little to do whatsoever with what has led the particular offender to the commission of the offence and what circumstances peculiar to the offender go in mitigation of sentence. There are certain offences - and these are well-known - in which personal circumstances and the circumstances leading to an offence will count much less than in others, because those offences demand, as a matter of public protection, deterrence as an overwhelming consideration. That said, the circumstances of this case provide an opportune moment in which to stress the need for individual justice having regard, of course, to the policy considerations that might dictate in a category of case a stern general approach but never forgetting the fact that the courts are on each sentencing occasion dealing with an individual whose peculiar circumstances, if they exist, always deserve careful attention. Consistency in sentencing is important but consistency does not dictate blindness to individual circumstances of the case and to those of an offender. An overly rigid preoccupation with uniformity can be inimical to individual justice.”

24.  These remarks have, we think, particular application to the case of A2.  She had been in the Bar in question celebrating the birthday of A1’s mother, who also happened to be her aunt.  Given that both appellants had been celebrating for several hours before the card was taken and used, it is not difficult to accept, as was put on their behalf in mitigation, that at the time Charges 1 and 2 were committed they were inebriated enough “to do something which they would not have done if they were sober”[7].  That was not, of course, a defence but it does help to explain how a young woman of good character from a good family came to commit such an offence.

25.  Her involvement was limited, on both her account and, independently, that of A1, as well as on the facts averred by the prosecution, to finding the credit card on a bar table and using it to purchase drinks to a value of $254.  Her conduct came squarely within the lower range of culpability described in Loh Joo Hooi, namely “the opportunistic use on one occasion of a single genuine credit card belonging to someone who has mislaid it, in order to procure goods of not great value”.

26.  In our judgment, given the circumstances of A2’s commission of Charges 1 and 2 and her plea, as well as her age, character and family background, the judge should have called for a Probation report and a Community Service Order (“CSO”) suitability report, the obtaining of which defence counsel had in fact urged upon the judge[8]. Had either of those alternatives been found to be unsuitable, and the judge was nevertheless satisfied that it was not appropriate to deal with her in any other way than by a sentence of imprisonment, she should have considered whether a suspended sentence would have been appropriate.

27.  It is our view that A2 should not have been dealt with by way of an immediate sentence of imprisonment.  Whilst we have considered ourselves obtaining both Probation and CSO reports, the fact is that the appellant has now served 8 months and 22 days in prison, which, assuming that her sentence may be reduced for good behaviour, is the equivalent of serving a sentence of 13 months’ imprisonment.  In those circumstances, we shall simply allow her appeal and order that she be sentenced to time already served and released from custody.

28.  The same considerations do not apply to A1. Whilst she, like A2, may have been intoxicated and had her inhibitions lowered at the time the credit card was stolen and used to pay for $254 worth of drinks in the Bar, her subsequent actions leading to the commission of Charges 3, 4, 5 and 6 cannot be seen in the same light; in particular, the separate and distinct offences of using the credit card to pay for a meal and for two mobile telephones at different shops in Sham Shui Po, Kowloon later that day.  The appellant, in addition to the value of the drinks in the Bar, used the credit card on four separate occasions to obtain goods or services worth $7,460. 

29.  However, there was a significant matter of mitigation in her case.  She was, at the time of the commission of the offences, 19 years and 5 months old.  By the time she came to be sentenced, she was just over 21 years of age.  No mention was made by the judge of the terms of section 109A of the Criminal Procedure Ordinance, Cap 221, although we note that no mention was made of the section by defence counsel (not Mr Shek) either.  Yet, the appellant fell into the unusual category of a defendant who at the time of the commission of the offence would have been entitled to be treated as a ‘young offender’ between the age of 16 and 21, but by the time of conviction and sentence was technically no longer a ‘young offender’.  The question of how offenders who fall into this hybrid category should be treated by sentencing courts has recently been addressed by the Court of Final Appeal in Secretary for Justice v Leung Hiu Yeung^[9]:

“74. We turn now to the question of the approach that courts should adopt when a defendant crosses a relevant age threshold between the dates of offending, conviction and sentence. As the court stated in Wong Chi Fung (CFA)^[10] at [84], the age of an offender is always a relevant mitigating factor in sentencing. Where, therefore, a defendant is just under the age of 21 when he commits the offence, the fact that he has turned 21 shortly thereafter and before conviction or sentence should be taken into account by the sentencing court…

76.  …we conclude that, for the purposes of s.109A, it is the defendant’s age at the date of sentence that is relevant.  However, if a young person has turned 21 years of age between the date of offending or conviction and the date of sentence, the fact of his youth will be a powerful factor in determining the appropriate sentence for him.  All the more so should this be the case where an offender aged under 21 years of age at the date when an original sentence is imposed turns 21 before a later review of that sentence by the Court of Appeal.  Although the provisions of s.109A do not strictly apply to such a person (so that the court is not strictly obliged to obtain the prescribed information), the sentence he should receive will, in most cases, be the same as if s.109A had applied to him.  There will, of course, be exceptions (and this court has already noted that s.109A may, in an appropriate case, be dispensed with) but, in practical terms, this will mean that a young offender who has turned 21 by the time of sentencing should only be sent to prison as a matter of last resort and, for that purpose, the court will have to be alive to the possibility it may need to obtain reports on the young person in question.  This approach reflects a wider principle that a court should have regard to common sense when sentencing a young person: see, in this context, Wong Chun Cheong v HKSAR^[11].”

30.  In our judgment, notwithstanding the seriousness of the offences, the judge should have called for background reports and at least given consideration to the possibility of A1’s suitability for a Community Service Order.  She was at the time of sentence in the first year of studying for a higher diploma in Tourism and Hospitality at an accredited institution in Hong Kong, came from a stable family background and was of clear record.  She has currently resumed her studies and is in her second year at the same institution.

31.  If the judge had concluded, for sound reasons, on the basis of the reports and her assessment of the facts and relevant authorities that there was no other method of dealing with A1 than by an immediate sentence of imprisonment, we would have accepted her position. However, we would still have expected her to reflect the fact of A1’s age and obvious immaturity in the quantum of sentence adopted.

32.  As to the appropriate quantum of sentence, we have found two recent judgments of this Court particularly helpful in identifying what would have been an appropriate starting point for facts of this nature.  In HKSAR v Li Chi Yat[12], the appellant, who pleaded guilty to four offences, stole a credit card from a wallet that had been left behind in the vehicle which he and the owner of the card and wallet were both using to make deliveries.  Later that day, he used the card to purchase a mobile telephone for $7,917 and made two further unsuccessful attempts to make purchases from other shops, to a value of $17,752.  The Court, in allowing the appeal, substituted concurrent sentences of 16 months’ imprisonment for the Charges of obtaining or attempting to obtain property by deception (from notional starting points after trial of 24 months’ imprisonment), together with a consecutive term of 3 months’ imprisonment for the original theft of the card (from a notional starting point of 6 months’ imprisonment); thus making 19 months’ imprisonment in all.  The appellant had a previous conviction for theft (although this was ignored by the sentencing judge) and there was an element of breach of trust, since the owner of the card and wallet was one of the owners of the appellant’s company (although this potentially aggravating feature was not mentioned by the Court).

33.  In Secretary for Justice v Lam Yuk Louisdeana[13], the respondent, who was of good character, claimed to have picked up the victim’s key bag, which had originally been in her backpack, from the floor of a supermarket.  In less than an hour, she had used the credit card to make four purchases (including two mobile telephones) to a total value of $14,283.  The respondent pleaded guilty and was originally given a suspended sentence.  The Court, on an Application for Review of sentence, set aside the suspended sentence and substituted an overall sentence of 15 months’ imprisonment, made up of four concurrent terms of 12 months’ imprisonment together with a consecutive term of 3 months’ imprisonment for the original theft of the card.

34.  In substituting an immediate sentence of imprisonment for the suspended sentence, the Court made clear[14] that it had taken into account that the substitution had come about by way of an Application for Review of sentence.  Although it did not specify what the sentence would have been had it not been an Application for Review, we think that the sentences adopted correspond to the approach of the Court in Li Chi Yat.  However, in neither Li Chi Yat nor Lam Yuk Chi Louisdeana was there an age factor.  In the former case, the appellant was 29 years of age: in the latter, the respondent was 58 years of age.

35.  In our particular case, had we come to the view that despite her age, the appellant had to be sent to prison for these offences, we would nevertheless have reflected the factor of her age in the terms of imprisonment imposed.  

36.  One should remember that an offender’s young age holds out the hope of reform and rehabilitation, which can be easily undermined by a crushing sentence of imprisonment in an adult prison.  The goal of ensuring that a young offender does not proceed down the path of crime can, for certain cases, be more effectively achieved by the lighter touch of a more lenient and compassionate sentence than by the heavier hand of a punitive and deterrent one.

37.  We would have adopted a starting point of 9 months’ imprisonment in respect of Charges 1 and 2 to reflect her age and the obvious circumstances of intoxication at the time the offences were committed, and 18 months’ imprisonment in respect of each of Charges 3, 4, 5 and 6 to reflect her age and evident immaturity.  Giving her a full one-third discount for her plea, the sentences would be correspondingly reduced to 6 months’ imprisonment on Charges 1 and 2, and 12 months’ imprisonment on Charges 3, 4, 5 and 6.  We would have ordered the sentences on Charges 1 and 2 to run concurrently with each other, and the sentences on Charges 3, 4, 5 and 6 also to run concurrently with each other.  We would then have ordered 3 months of the sentence on Charges 1 and 2 to run consecutively to the 12 months’ imprisonment on Charges 3, 4, 5 and 6, thus making 15 months’ imprisonment in all.

38.  The judge gave the appellant a further credit of 3 months’ imprisonment for making full restitution and, although we might have considered a reduction of 2 months’ imprisonment more proportionate to the length of our substituted sentence, we are prepared to honour the judge’s discount.  Accordingly, the final term of imprisonment to which the appellant would have been subject would be 12 months’ imprisonment. 

39.  Since the appellant, like A2, has already served 8 months and 22 days, which is the equivalent of 13 months’ imprisonment with remission, we shall likewise allow her appeal, reduce the sentence we would have imposed to time already served and order her immediate release.

[1] HKSAR v Tu I Lang (Unrep., CACC 464/2006, 18 May 2007).

[2] HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242.

[3] R v Kwan Ying Ho (Unrep., CACC 527/1992, 12 August 1993), at p 5.

[4] HKSAR v Leung Pui Shan (Unrep., CACC 317/2007, 5 February 2008), at para 13.

[5] HKSAR v Loh Joo Hooi [2014] 3 HKC 301, at para 15.

[6] R v Chan Sui-to & Anor [1996] 2 HKCLR 128.

[7] AB p 17S-T.

[8] AB p 18F-I.

[9] Secretary for Justice v Leung Hiu Yeung (2018) 21 HKCFAR 421.

[10] Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35.

[11] Wong Chun Cheong v HKSAR (2001) 4 HKCFAR 12.

[12] HKSAR v Li Chi Yat (Unrep., CACC 189/2018, 30 April 2019).

[13] Secretary for Justice v Lam Yuk Chi Louisdeana (Unrep., CAAR 4/2018, 11 July 2019).

[14] Ibid., at para 38.