HKSAR v. LAM CHI YIN

CACC 388/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 388 OF 2016

(ON APPEAL FROM DCCC 470 OF 2016)

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REASONS FOR JUDGMENT

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1.  The applicant was charged with two others in respect of a number of offences involving the theft of a credit card and the use of other credit cards. The applicant was D3 on the Charge Sheet and he pleaded guilty to charges 3, 4 and 5. Charge 3 charged him with “Using a false instrument”, contrary to section 73 of the Crimes Ordinance, Cap 200. Charge 4 charged him with “Possessing false instruments” in the form of six credit cards, contrary to section 75(1) of the Crimes Ordinance, Cap 200 and charge 5 charged with the “Theft”, contrary to section 9 of the Theft Ordinance, Cap 210. The applicant appeared before District Judge J Lam (“the judge”) and after pleading guilty to these three charges he was, on 8 December 2016, sentenced to a total period of imprisonment of 32 months. This totality was comprised of sentences of 24 months’ imprisonment on charges 3 and 4 which were ordered to run concurrently with each other, and on charge 5 to 8 months’ imprisonment which was ordered to run consecutively to the terms of imprisonment imposed on charges 3 and 4.

2.  The applicant subsequently applied for leave to appeal his sentence (Form XI). 

3.  At the hearing of his application I refused it and said I would hand down my reasons for doing so at a later date. These are my reasons. 

The background to the offence

4.  The Summary of Facts which was admitted by the applicant and used for the purpose of his sentencing, revealed that on 29 September 2015 the applicant and his co-accused were all arrested outside Tsuen Wan Plaza, Tai Pa Street, Tsuen Wan for having operated as a gang in a joint criminal enterprise to purchase goods using counterfeit and/or stolen credit cards, with each defendant playing a different role within the criminal enterprise.  The 1^st defendant was the lookout and the 2^nd defendant drove the car they used on this shopping trip.  The applicant held, supplied, and retained the credit cards and also recruited people to make the actual purchases with them.  One such person was a prosecution witness (“PW1”) and he was to be paid 10% of the purchase price of any goods he obtained.  Coded signals were agreed upon in order to alert PW1 to abandon any purchase that may have been in progress. 

5.  On 29 September 2015 the applicant called PW1 to meet him at To Kwa Wan for “doing something”.  PW1 was aware that this meant using forged credit cards as the applicant had used the same expression with him on a previous occasion.  Upon arriving at To Kwa Wan, PW1 met the applicant at a private car.  The 1^st defendant and the 2^nd defendant were already in this car.  They then drove to Tuen Mun where the 1^st defendant and the applicant alighted while PW1 and the 2^nd defendant stayed in the car.  After their return to the car they drove to Tsuen Wan and stopped outside the plaza. 

6.  Inside the car, the applicant took out six credit cards, which PW1 believed to be forged.  The applicant gave PW1 two of these cards and asked him and the 1^st defendant to try these cards at a branch of “Sportshouse” which was located at Shop No 367, Tsuen Wan Plaza.

7.  PW1 and the 1^st defendant went to “Sportshouse” and used an American Express card bearing the name “William Hing Lun Au” to buy a pair of grey sneakers at a cost of some $1,600.

8.  They then returned to the car where PW1 gave the two credit cards and the sneakers to the applicant. 

9.  In the afternoon of 29 September 2015 a woman, Tam Sau Ling, went shopping with her husband at Tsuen Wan Plaza.  At about 4:30 pm she went to “OGAWA” where she bought a massage machine costing $499.  She paid for this purchase by a Hang Seng Bank credit card with the account number 4548-8901-4774-7112 in her own name.  She handed her credit card to a male staff member and then sat on a massage chair while she waited for the transaction to be processed.  Whilst waiting she noticed the applicant entering the shop.  He talked to the staff member who was handling her transaction and she saw them walk towards the cashier counter.  About two minutes later the applicant left the shop without buying anything.  The CCTV footage captured the applicant entering the shop and leaving in a rush.

10.  About 10 minutes later Tam Sau Ling approached the staff member handling her transaction for the return of her credit card.  He claimed that he had already returned it to her.  She then searched her pockets and her handbag but could not find her card and so she called the card centre to terminate her card.  The staff member confirmed Tam Sau Ling’s account and gave a similar version except that he believed he had returned her card to her after processing the sale.  The staff member said he had spoken to the applicant about a foot massage machine which he had shown him.  However, when he asked the applicant to write down his personal details the applicant refused to do so and left shortly afterwards. 

11.  Tam Sau Ling’s credit card was unsuccessfully used that afternoon in an attempt to purchase jewellery[1].

12.  When PW1, the 1^st and 2^nd defendants and the applicant met up at their private car they were arrested by police officers. After their arrest the police searched the motor vehicle and found between the front seats the sneakers that are the subject of charge 3, and also found the six credit cards that are particularized in the 4^th charge. 

13.  An examination of all the credit cards seized showed that the credit card that is the subject of theft offence in charge 5 is a genuine Hang Seng Bank Visa card in the name of Tam Sau Ling. 

14.  The credit card used to affect the transaction in charge 3 was one of the six found in the car and which are the subject of charge 4.  Some of these cards were wholly counterfeit whilst others were genuine cards whose magnetic strips contained personal data inconsistent with the personal data embossed on the face of the card.

15.  The applicant was video interviewed after his arrest and in this interview he admitted knowing the 1^st and 2^nd defendants and PW1 and admitted that they had all gone together to Tsuen Wan Plaza on 29 September.  However, he stated that they were going to worship in Pak Tai temple and eat roast goose nearby in Sham Tseng.  However, the Summary of Facts concluded with the applicant admitting he committed the offences in charges 3, 4 and 5. 

16.  In respect of charge 3 the applicant admitted that he, together with his co-accused and PW1, had used a false instrument, namely an American Express card in the name of “William Hing Lun Au” at “SPORTSHOUSE” with the intention of inducing a staff member there to accept it as genuine.

17.  In respect of charge 4 the applicant admitted that he and PW1 jointly possessed six false instruments, namely three Visa cards issued by Westpac, China Construction Bank and Bank of Communication and three American Express cards. 

18.  In respect of charge 5 the applicant admitted that he stole the Visa card of Tam Sau Ling and subsequently gave it to PW1.

The mitigation

19.  Mr James Tze Ying Kuen appeared for the applicant at his sentencing hearing and informed the court that the applicant was 30 years of age. Before his arrest, he had worked as a waiter in Tsim Sha Tsui for three to four months with a monthly salary of $15,000. He was living with both his parents and his younger sister.  His father suffered from heart disease.  Every month, whilst he was employed, he contributed $8,000 to support his family.  His younger sister was aged 26 years and worked in sales. 

20.  The applicant had an unattractive criminal record having been convicted of six counts of robbery and one count of burglary in 2004 when he was only 18 years of age.  For these offences he was sentenced to Training Centre.  In 2010 he was convicted of possession of a dangerous drug and was given a 10 weeks suspended sentence.  In 2011 he was sentenced to 2 years 10 weeks’ imprisonment for obtaining property by deception, attempting to obtain property by deception and handling stolen goods and for breach of his earlier suspended sentence.  In 2016 he was given a suspended sentence for driving while disqualified and using a motor vehicle on a road against third party risks. 

21.  In 2011, the applicant was declared bankrupt.  When he was released from prison and in mid-2013 he could not obtain employment and borrowed money from friends.  He was in financial difficulties and was being chased to make repayment to his friends.  It was in response to these severe financial difficulties that he committed the present offences.

22.  Mr Tze submitted on behalf of the applicant that the credit card fraud committed in this case could be categorized as being on a relatively small scale.  He suggested that the appropriate sentence of imprisonment was a 3-year starting point for each charge.  In respect of the charge 5 he said that it was a less serious offence compared to the culpability of the applicant on the two false credit cards charges and suggested starting point for that charge of 12 months’ imprisonment. 

23.  Mr Tze further submitted that as all three charges were committed by the applicant on the same date and were of a similar nature, the judge should order that the sentences for them should all be served concurrently. 

24.  When the judge queried Mr Tze whether the sentence for the 5^th charge, which he indicated he regarded as being a separate offence, should be ordered to be served concurrently with the sentences for the other charges, Mr Tze urged the judge to apply the totality principle and consider ordering part of the sentence for that charge to be served concurrently. 

25.  The judge also queried Mr Tze whether the applicant should be regarded as the mastermind of these offences, or whether he should simply be regarded as an equal member of the joint enterprise, albeit he played a more significant role within it.  Mr Tze, not surprisingly seized the opportunity to portray his client as simply having played a more active role within a joint enterprise in which all the participants were of equal culpability.

26.  Mr Tze then referred the judge to the decision of R v Chan Sui To[2], and suggested that the overall starting point for the applicant, in light of what was said in that case, should not be more than 4 years’ imprisonment.

The judge’s Reasons for Sentence

27.  After setting out the circumstances of the offences the judge described the role of each of the participants of this joint enterprise.  He said:

“   D1 to D3 and Chung were a gang of credit card fraud. There was division of labour among them. D2 drove the gang to the shopping destination. D3 held, supplied and distributed the cards. He recruited people like Chung to make purchase in shops with unauthorised credit cards. D1 acted as lookout. He would warn his accomplices if Police were coming.”

28.  When he came to describe the applicant’s mitigation the judge referred to Mr Tze’s submission that although the applicant had played a more significant role in the joint enterprise he could not be said to be the mastermind of it.  He also referred to Mr Tze’s submission that the joint enterprise should be regarded as a small scale credit card fraud and that the starting point for charges 3 and 4 should only be 3 years’ imprisonment whilst the starting point for charge 5 should be no more than 12 months’ imprisonment.  Finally, he referred to Mr Tsz’s submission that in respect of the sentence for charge 5 the judge should have regard to the totality principle and not adopt an overall starting point in excess of 4 years’ imprisonment.

29.  In imposing his sentence the judge said:

“ D1 to D3 and Chung operated as a gang of four. It was a small group. All say that they themselves were no mastermind. Anyway, the four were in joint enterprise with division of labour. The criminal operation could not be carried out without any one of them. As there is no evidence that anyone was the mastermind, I would treat each as culpable as the others. Each was an indispensable cog of this wheel perpetrating credit card fraud.”

30.  He then noted that only the shoes worth $1,600 that are the subject of charge 3 had been successfully purchased, but went on to comment:

“… If the gang had not been stopped, I am sure they would indulge themselves in similar fraudulent activities for as long as they could, thus causing loss to more victims and which amount and number were hard to estimate then.”

31.  He then said he would adopt 3 years’ imprisonment as his starting point for charges 3 and 4.  He said that charge 5 should be regarded as a separate crime from any offence of a subsequent use of the stolen credit card.  He adopted 12 months’ imprisonment as the starting point for this charge.  He then discounted these starting points to allow for the applicant’s pleas of guilty. 

32.  For charges 3 and 4 the discounted sentences became 24 months’ imprisonment and the judge ordered these sentences to be served concurrently with each other.  The discounted sentence for charge 5 became 8 months’ imprisonment and the judge ordered this to be served consecutively to the sentences of imprisonment that he imposed on charges 3 and 4.  By this route he arrived a total sentence of imprisonment for the applicant of 32 months’ imprisonment.

The grounds of appeal

33.  The applicant is not represented and so there are no Perfected Grounds of Appeal.[3] However, in a letter dated 20 June 2017 addressed to the High Court he set out his complaints.  In that letter he specifically accepted that the sentences imposed for charges 3 and 4 and the order that they be served concurrently with each other were proper and he had no complaint in respect of them.  His only complaint was in respect of the sentence for charge 5 and the order that it be served wholly consecutively to the sentences imposed on charges 3 and 4.  In support of his argument that the sentence for charge 5 should be ordered to be served concurrently, or at least partially concurrently, he relied on the judgment of Macrae JA in HKSAR v Atienza Richard Montenegro[4]. 

34.  At the hearing of the application the applicant relied on the contents of his letter dated 20 June 2017 and on the Atienza case to seek a partially concurrent sentence.  He also offered to make restitution.

The respondent’s submission

35.  Mr Prakash Daryanani, Senior Public Prosecutor, for the respondent, submitted that the judge did have regard to the totality principle before imposing his sentences.  He referred to case authority to demonstrate that the starting points adopted by the judge were correct.  He submitted that the case of Atienza on which the applicant relied could be distinguished from the facts of the applicant’s offences.  In Atienza it was the stolen credit card that was the means by which fraudulent purchases that were the subject of the other charges, were effected.

Discussion

36.  As the applicant is not challenging the starting points for any of the charges it is not necessary for me to say anything about them.  However, there are a number of observations that I wish to make.  Firstly, in respect of the theft offence.  This is no normal theft of personal property.  The reason this particular property was stolen was so that the applicant could commit further offences which, in turn, could have caused multiple losses to multiple victims.  This, in my view, entitled the judge to adopt a higher starting point as it elevated this theft offence to a higher level of seriousness. 

37.  Secondly, in respect of the credit card offences the judge would have been perfectly entitled to enhance the applicant’s starting point to allow for the level and nature of his involvement in the joint criminal enterprise.  It is not usual to distinguish between the culpability of participants in a joint criminal enterprise[5] because the sentences of all the participants must reflect the same basic criminality.[6]  Nevertheless there may be scope for distinguishing between the participants depending on the facts of each case[7] and it can and should be done where there is a factual basis for it.  In respect of this applicant the judge was entitled to find that he could not safely conclude that the applicant was a “mastermind” of this enterprise.  There may well have been someone behind the applicant providing him with the credit cards or taking from him the fraudulently obtained goods.  But within the members of this gang, the evidence clearly allowed of the inference that he was playing a leadership role.  He was the keeper of the credit cards, the person the others looked to for instruction and the person telling them what to do.  He was clearly the prime mover amongst the gang.  This distinguished the applicant sufficiently from the others to justify adopting a higher starting point for him.

38.  Thirdly, the judge would have been entitled to enhance the applicant’s starting point in view of his criminal record.  That record demonstrates that the applicant needs to be deterred from pursuing a life of crime and evidences a need to protect society from him.[8]

39.  Fourthly, the judge would have been entitled to have ordered that part of the sentence for the fourth charge should be served consecutively to the sentence for the third charge.  True it is that the two offences had in common that they were both credit card offences being committed in the course of one episode of criminal activity.  Nevertheless, the possession by the applicant of the tools for a much more extensive spree of credit card fraud added another level to his culpability and this should have been reflected, and appropriately punished, by an order for a partially consecutive sentence.   

40.  I turn now to the complaint that the judge erred in ordering that the sentence for charge 5 should be served consecutively to the sentences for the other offences.  There are three aspects to this ground of appeal.  They are:

(i) did the judge err in principle in ordering the sentence to be served consecutively;

(ii) did the judge err by not having regard to the totality principle; and

(iii) even if the judge did have regard to the totality principle did he nevertheless err in his application of it with the consequence that he imposed a total sentence that was manifestly excessive.

41.  There is no error of legal principle in the judge ordering the sentence for charge 5 to be served consecutively.  The relevant sentencing principles were laid down by this court in HKSAR v Ngai Yiu Ching[9] where Stock VP emphasised that the real point “is not whether two or more offences are committed at about the same time, but whether the second or other further offences add to the culpability of the first.”[10]

42.  In my view the theft offence clearly added to the culpability of the applicant and, therefore, it is not reasonably arguable that there was an error of principle by the judge in ordering that the sentence for charge 5 should be served consecutively to the other sentences.

43.  On the second issue of whether the judge had regard to the totality principle I do not regard it as reasonably arguable that he did not. It was a key element of Mr Tze’s submissions and he referred to that submission in his Reasons for Sentence.  It cannot be assumed that when he came to determining whether to impose a consecutive or concurrent sentence he suddenly forgot or deliberately ignored all that Mr Tze had said on the issue.

44.  On the third question I am of view that it is not reasonably arguable that the sentence is manifestly excessive.  It must be remembered that the purpose of the totality principle is not to confer a benefit on a defendant or to conduct a review of the proposed sentence bearing in mind only his interests.  The purpose of the totality principle is to assist the court to arrive at a just sentence and that requires having regard to more than just the interests of the defendant.  As Stock VP said in Ngai Yiu Ching at paragraph 22:

“ The importance of the totality principle cannot be overstated. It is there to ensure not only fairness to the offender, in the sense that he is not punished twice for the same offence and, further, that the sentence is not an unduly crushing punishment, but it is also a tool by which to ensure that ‘the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation.’: R v K M [2004] NSWCCA 65 at para. 55.”

45.  These views were echoed by another division of the Court of Appeal in HKSAR v Lam See Chung Stephen[11] where it was said at paragraph 51:

“ The purpose of the totality principle is to achieve a just and balanced sentence that will not punish the defendant twice for the same conduct and will not be crushing to him. It is clear that a just and balanced sentence is one that is not concerned solely with the rehabilitation needs of the offender but also accommodates other relevant sentencing principles, such as retribution, that is, the need to punish an offender for his misdeeds; where deterrence is needed in respect of a particular offender or offence, to appropriately deter him and others; the need to denounce the conduct and, where an offender preys upon the community, to protect it from his depredations. It is well to remember that at times a severe sentence will be an appropriate sentencing response and just because a sentence is severe does not mean that it is not just and balanced.”

46.  The case of Atienza on which the applicant relies is of no assistance to him.  It is a case of an opportunistic theft by finding of a credit card with subsequent multiple fraudulent uses of that credit card by a defendant acting alone.  There is nothing in the judgment of Macrae JA which is relevant to the circumstances of this applicant and no statement of legal principle which would have the effect of calling into question the decision of the judge in respect of this applicant, in the circumstances of this case, to order that the sentence on charge 5 be served consecutively to the other sentences.  I do not think it is reasonably arguable that, in the circumstances of this applicant’s case, the total sentence the judge imposed was manifestly excessive. 

Conclusion

47.  For these reasons I refused the application for leave to appeal against sentence.