HKSAR v. LI KUNWEI

CACC 47/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 47 OF 2016

(ON APPEAL FROM DCCC NO. 831 OF 2015)

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J U D G M E N T

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1. On 1 February 2016, the applicant was sentenced to a total sentence of 2 years and 2 months’ imprisonment by Deputy Judge Joseph To (“the judge”) in the District Court, following his pleas of guilty to one charge of attempting to use a false instrument, contrary to sections 73 and 159G of the Crimes Ordinance, Cap 200 (Charge 1), and another charge of using a false instrument, contrary to section 73 of the Crimes Ordinance (Charge 2).

2. The applicant filed a Notice of application for leave to appeal against sentence (Form XI) on 16 February 2016 and today appears before me in person.

The Facts

(Charge 1)

3. On 3 July 2015, the applicant, a Mainland resident and holder of a visitor’s permit who had entered Hong Kong the previous day, presented a forged Industrial and Commercial Bank of China MasterCard in the name of Chen Wenbo (Exhibit P1), intending to purchase an iPhone 6 Plus at a shop called ‘Studio A’ on the ground floor of the Novotel Hotel in Nathan Road, Kowloon.  However, the sales assistant suspected that Exhibit P1 was a forged credit card and made a report to the police.  Exhibit P1 was duly returned to the applicant.  Two police officers promptly arrived at ‘Studio A’ and intercepted the applicant outside the shop.

4. When searched, Exhibit P1 was found in the pocket of the applicant’s trousers.  Upon enquiry, the applicant admitted that Exhibit P1 was forged, that he had purchased it from someone on the Mainland, and that he had attempted to use it to buy a mobile telephone in ‘Studio A’.  He was accordingly arrested and cautioned, whereupon he said he had purchased Exhibit P1 in order to make some money in Hong Kong.

(Charge 2)

5. In the course of the search of the applicant, the officers also found in his shoulder bag an invoice showing that the applicant had earlier succeeded in purchasing an iPhone 6 using the same credit card, Exhibit P1.  They also found an iPhone 6 (Gold, 64 GB) and mobile accessories in the same shoulder bag.  The applicant admitted that he had earlier purchased the mobile telephone and accessories from a shop in Fuk Wah Street, Sham Shui Po, called ‘In Smart’, also using Exhibit P1.  The applicant was duly arrested and cautioned again, whereupon he repeated the same admissions.  The purchase of the mobile telephone using Exhibit P1 was later confirmed by a sales assistant at ‘In Smart’.  The purchase price had been HK$6,388.

6. Also on the applicant’s person were found five other credit cards in different names (Exhibits P2-6).  Under arrest and caution, the applicant admitted that he had purchased the five cards from someone on the Mainland.

7. It was later confirmed by a forensic scientist that Exhibits P1 and P2-6 were all forged credit cards.  On 4 July 2015, during a video recorded interview, the applicant stated that he had bought Exhibits P1-6 from an unknown person in Shenzhen on 29 June 2015 for RMB1,000 in order to see if he could use them to buy iPhone 6’s in Hong Kong.  He had successfully used one of the credit cards to buy an iPhone 6, but failed at a second attempt.

8. The applicant also explained that his income was around RMB3,000-4,000 per month and that he had debts of approximately RMB70,000-80,000.

Mitigation

9. It was submitted on the applicant’s behalf that he had fully cooperated with the police both before and after his arrest, and had pleaded guilty to the offences, thus demonstrating his remorse.  His counsel referred to the case of R v Chan Sui To[1996]2 HKCLR 128 and suggested that the applicant’s activities did not bring him within what was there described, at 134A-B, as a “medium size operation”.  Accordingly, he submitted that a sentence less than that prescribed for a “medium size operation” was appropriate.

Reasons for sentence

10. The judge referred to the decision in HKSAR v Lam See Chung, Stephen [2013] 5 HKLRD 242, where the Court had said, at para 39:

“Those judgments which lay down a sentence of 3 years’ imprisonment or less for cases of simple credit card fraud are based on a number of sentencing principles and considerations. They are that counterfeit credit card offences require deterrent sentences; there is a need to protect the integrity of the credit card system; and the potential for loss is great and often will be far greater than the actual loss. In fact, it is precisely because of this last consideration that the actual loss will not necessarily be an important factor when it comes to sentencing a credit card offender; rather “it is this potential for losses which is the most important consideration”[1]. ”

He also referred to the decision in HKSAR v Loh Joo Hooi [2014] 3 HKC 301, which approved an overall starting point of 3½ years’ imprisonment for a Malaysian national who had come to Hong Kong via Shenzhen and used two forged credit cards to purchase goods worth just under HK$8,000, whilst in possession of three other forged credit cards.  He pointed out that the Court in that case had said in respect of the international dimension involved, at para 18:

“… the aggravation lies in the intentional bringing of the instruments of crime over the border from another jurisdiction for their use or proliferation on the streets of Hong Kong.”

11. The judge accepted that the case before him did not involve a “medium size operation”.  Given the actual use and attempted use of one forged credit card with an international element, the applicant’s previous good character and the value of the goods obtained, the judge adopted a starting point of 3 years and 3 months’ imprisonment in respect of each charge, which he discounted by one-third for plea, resulting in sentences of 2 years and 2 months’ imprisonment.  Bearing in mind the principle of totality, the judge ordered the two sentences to be served concurrently, thus making a total sentence of 2 years and 2 months’ imprisonment.

Grounds of Appeal

12. By his homemade grounds of appeal attached to his Form XI, the applicant submits that the offences were committed out of momentary greed and were neither premeditated nor sophisticated. Furthermore, the offences were carried out by a single person acting alone.

13. In his hand written submissions dated 21 April 2016, the applicant further states that the amount concerned did not cause serious repercussions to any individual victims or to society at large.  He took issue with the notion that he should be treated as a professional overseas criminal.  He stresses that he pleaded guilty and has at all times been cooperative with the authorities.

14. He further suggests that the monetary values considered in Chan Sui To would have been significantly greater in real terms in 1996 when that case was decided than now, 20 years on.

15. Before me this morning, the applicant has made short but sensible submissions outlining his plans to make a positive contribution to society and, in particular, to charitable organisations dealing with the rehabilitation of prisoners, should he be granted the chance of an earlier release.  I have no reason to doubt the sincerity of his intentions.

Respondent’s submissions

16. Ms Audrey Parwani SPP (Ag), for the respondent, relies on the decision in Lam See Chung, Stephen (supra) for the proposition, at para 40 of the judgment, that a starting point of 3 years’ imprisonment or less for small scale credit card offences applies to the fraudulent use of both counterfeit credit cards and genuine credit cards which have been stolen.

17. She also places reliance upon the decision in HKSAR v Tu I Lang(unrep., CACC 464/2006), and in particular upon para 10 of the judgment, where the Court held that where the facts point to a small unsophisticated operation, involving only one or a few forged credit cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate.  In the present case, there was in addition an international element, inasmuch as the applicant had brought the credit card(s) into Hong Kong with the express intention of committing crime here with it (them).

18. She points out that the Court in Tu I Lang had found, at para 11 of the judgment, that no international dimension or other aggravating features were involved in that offence but notes that the Court in Loh Joo Hooi(supra)considered that the Court in Tu I Lang appeared to have been somewhat generous in that finding.[2]  She observed that the Court in Loh Joo Hooi had approved an overall starting point of 3½ years’ imprisonment on facts which were not dissimilar to the facts of the present application.  Accordingly, the overall starting point adopted by the judge of 3 years and 3 months’ imprisonment in the present case might be said to be on the generous side.  Taking into account the enhancement for the international element involved, she submits that the starting point stipulated by the judge could hardly be said to be excessive.

19. In response to the applicant’s submissions, Ms Parwani argues that it was plain from the circumstances and the applicant’s admissions to the police that the present offences were obviously premeditated.  She contends that the cases referred to by the judge supported the proposition that a 3-year starting point was appropriate for small, unsophisticated credit card frauds involving the use of one or a few forged cards, with no links to a larger operation, or other aggravating factors.  She also points out that counsel for the applicant himself in mitigation had submitted the case of Chan Sui Toin orderto support his contention that the applicant’s case should not be treated as a “medium size operation”, which would otherwise have warranted a starting point of 5 to 6 years’ imprisonment; a proposition which the judge clearly accepted.

Consideration

20. The applicant fell to be dealt with for two offences: one of attempting unsuccessfully to use a forged credit card to purchase an iPhone 6 at ‘Studio A’, the other of successfully using the same card to buy another iPhone 6 at ‘In Smart’.  On the authorities referred to by the respondent, the judge could not have adopted an overall starting point of less than 3 years’ imprisonment for the two offences.  In addition, there was the aggravating feature that the applicant had come to Hong Kong the day before his arrest with the express purpose of using no less than five forged credit cards in order to obtain property here.  In HKSAR v Tan Hong Sheng (unrep., CACC 238/2005), a strong Court held, at para 26, in relation to the pick-pocketing of a mobile telephone by a visitor to Hong Kong:

“The fact that the applicant and his co-accused committed the offence the very next day after they arrived in Hong Kong from the Mainland, contrary to the applicant’s submission, is indeed a most serious aggravating factor as rightly identified by the judge.”

In HKSAR v Sandagdorj Altankhuyag [2014] 1 HKC 206, the Court observed, at para 17:

“It is one thing to commit crime whilst visiting Hong Kong: it is quite another to come to Hong Kong in order to commit crime.”

For this factor, the judge enhanced the starting point by 3 months’ imprisonment.  It could have been more.

Conclusion

21. I cannot in the circumstances see any reasonably arguable ground of appeal against sentence and the application must be refused.  The applicant is duly advised of his right to renew his application for leave to appeal against sentence to the Court of Appeal, but is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

Ms Audrey Parwani SPP (Ag), of the Department of Justice, for the Respondent

The Applicant appeared in person

[1]   HKSAR v Ng Swee Thiam [2000] 1 HKLRD 772, at 778C.

[2]   See Loh Joo Hooi, at paragraph 18: “On the face of it, the Court in Tu I Lang appears to have been somewhat generous in proceeding on the basis that there was no international dimension to the offences before them, but it may be that they felt bound by the findings of the trial judge in this regard. Be that as it may, we are dealing with a foreign national coming from Malaysia via the Mainland with five forged credit cards which he used to obtain goods worth just under HK$8000 within hours of his arrival in Hong Kong. The judge rightly found, and (counsel) does not dispute, that there was clearly an international element to the commission of the offences on those facts alone. We should, however, make clear that it is not, in this case, the fact that the applicant is a foreign national who happens to have committed a crime in Hong Kong, which provides the aggravating international element for sentencing purposes: the aggravation lies in the intentional bringing of the instruments of crime over the border from another jurisdiction for their use or proliferation on the streets of Hong Kong.”