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 NO. 181 OF 2001)

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J U D G M E N T

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1. I grant the Applicant leave to appeal against his sentence on the ground that it is arguable that an overall starting-point of 3 years' imprisonment was manifestly excessive for a credit card fraud involving less than $9,000.00 in which the Applicant was not alleged to have been a member of a larger syndicate.

2. The two authorities to which my attention has been drawn do not really assist. Chan Sui To [1996] 2 HKCLR 128 does not help because although the case usefully sets out the factors to be taken into account in credit card frauds, the only guidance it gives as to the level of sentence relates to a medium-size operation involving between $50,000.00 and $150,000.00. That was not this case. Nor can any help be derived from the other case to which my attention has been drawn: Hung Ping Wah (CACC 241/1997). Although an overall starting-point of 4 years' imprisonment was not regarded as manifestly excessive in that case, and although the case involved the use on two occasions (as here) of a false credit card to obtain goods worth less than $10,000.00, the Applicant in that case was far more heavily involved in credit card fraud because, unlike the present Applicant, a total of 10 additional forged credit cards had been found at his home and in his car.

3. In my opinion, it is arguable that an overall starting-point of 3 years' imprisonment was disproportionate to the Applicant's true criminality, and it is arguable that the appropriate starting-point should have been in the region of 2 years' imprisonment. It follows that it is arguable that the overall starting-point which the judge took was manifestly excessive.