HKSAR v. CHUNG CHI TAK

CACC183/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.183 OF 2004

(ON APPEAL FROM DCCC NOS.10 & 39 OF 2004)(Consolidated))

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REASONS  FOR  JUDGMENT

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Hon Lunn J (giving the reasons of the court) :

1. The applicant seeks leave out of time to appeal against sentences totalling four years and three months imposed upon him by Judge Chua in the District Court on 2 April 2004.  Whilst no good reason has been supplied to us for the late notice we propose to entertain this application on the merits. 

BACKGROUND

2. The applicant stood trial together with two co-defendants.  The first defendant pleaded guilty to two charges of obtaining property by deception, contrary to section 17(1) and to one charge of handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap.210.  Those offences were committed on 9 and 12 November 2003.  The third defendant pleaded guilty to six charges of using a false instrument, contrary to section 73 and three charges of possession of a false instrument, contrary to section 75 (1) of the Crimes Ordinance, Cap.200 and two charges of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap.210.  Those offences were committed on and between 19 July and 12 November 2003.  For his part the applicant was convicted after trial of a single charge of handling stolen goods, contrary to section 24 or the Theft Ordinance, Cap.210 and of a charge of possessing a false instrument, contrary to section 75(1) of the Crimes Ordinance, Cap.200.  All the charges relating to false instruments concerned forged credit cards, by the use of some of which the property the subject of the deception charges was obtained.  The property the subject of the handling charges was property thereby obtained.

THE PROSECUTION CASE

3. On the afternoon of 12 November 2003, the applicant was found by police officers in the front passenger seat of a motor car stationery at the junction of Castle Peak Road and Fat Cheung Street.  Together with him in the motor car were the first and third defendants at trial and another man.  The first defendant had just returned to the motor car and had placed the mobile phone, the subject of charge 15, in the boot of the car before sitting in the driver’s seat.  The applicant was found to be wearing the gold necklace, the subject of charge 17, which the first defendant had obtained about 15 minutes earlier by the use of a forged credit card.  Various pieces of paper bearing the Shell logo with manuscript writing on them were found in the applicant’s pocket.  A search of the applicant’s home revealed a forged credit card, the subject of charge 19, bearing the name Chung Lai Hong and a notebook and loose papers bearing manuscript entries of names and numbers.

THE DEFENCE CASE

4. The applicant did not give evidence at his trial but did call the third defendant as a witness.  In her Reasons for Verdict the Judge rejected the evidence of the third defendant that the applicant was only a recent acquaintance and not aware of, let alone a party to, the use of forged credit cards by the three other men found in the car to obtain property by deception.

SENTENCE

5. The Judge sentenced the first defendant to two years’ imprisonment on each of the three charges of which he had been convicted following his pleas of guilty.  She ordered that one month’s imprisonment of each of the sentences imposed in respect of the second and third of the charges to run consecutively to the sentence imposed on the first defendant, so that the total sentence imposed was two years and two months’ imprisonment.

6. The Judge sentenced the third defendant to two years’ imprisonment on each of the 13 charges of which he had been convicted following his pleas of guilty.  She ordered that one month of the periods of imprisonment imposed in respect of all of the charges, other than charge 1, were to run consecutively to the sentence imposed in respect of charge 1, so that the total sentence imposed was three years’ imprisonment.

7. The Judge sentenced the applicant to four years and three months’ imprisonment on each of charges 17 and 19.

THE REASONS FOR SENTENCE

8. The Judge stated that she had regard to the guidelines provided by this court in The Queen v. Chan Sui To [1996] 2 HKCLR 128 in respect of credit card frauds in determining sentence.  Of the evidence led in the trial of the applicant, she said that whilst it did not suggest that this was a sophisticated syndicate with international dimensions it did suggest that :

“… shortly after he was released from prison for similar offences involving forged credit cards he picked up where he left off.  The notes with telephone numbers suggest he had quite a stable of persons he called on to make purchases for him.  They were paid the standard 10% of the cost of each purchased item.

Where he obtained the credit cards issued in the user’s name one does not know. ”

Of the defendant’s role she determined :

“I was satisfied he, not Liu, was the person directing where D1 or D3 should go, certainly on the day of arrest, 12 November, and what they should buy.  As I said, it does not appear that this has international dimensions, even though I see he has the contact details for a Thai national.  The purchases were not ambitious.”

STARTING POINT AND SENTENCE

9. The Judge stated that she took a starting point for sentence of four years and three months in respect of each of charge 17 and 19.  Having determined that there were no factors in mitigation that would lead her to discount sentence from those starting points she imposed those sentences in respect of each charge and ordered that the terms of imprisonment be served concurrently.  The reference made by the Judge to the criminal record of the applicant was to his conviction on 20 May 2003 of two offences, the one of attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance and the other of possession of a false instrument, contrary to section 75(2) of the Crimes Ordinance for which offences he had been sentenced to a total of six months’ imprisonment.

PERFECTED GROUNDS OF APPEAL AGAINST SENTENCE

Grounds 1 to 4

10. By these grounds complaint is made that the Judge erred in adopting a starting point for sentence of four years and three months’ imprisonment in respect of each charge.  It is contended by Mr Kelly that the Judge fell into that error by :

Ground 2    Failing to distinguish adequately the degree of criminality of the applicant having regard to the relevant factors identified in the guidelines set out in Chan Sui To;

Ground 3    placing undue weight on the contents of the manuscript notes found in the possession of the applicant at the time of his arrest; and

Ground 4    wrongly concluding that the applicant was directing the criminal enterprise on the day of his arrest.

Ground 5

11. By this ground it is complained that there is an unjustifiable disparity in the starting point adopted by the Judge in respect of the applicant in contrast to his co-defendants having regard to their relative criminality.

12. In his submissions Mr Kelly reminds the court that the applicant stood trial and was convicted of two charges only, namely handling the stolen gold necklace (charge 17) and possession of the forged credit card found at his home.  Both offences were committed on 12 November 2003.  There were no other charges brought by the prosecution to reflect broader culpability in the applicant in respect of conduct or time.  In effect, he submits that the Judge lost sight of the relatively narrow compass of the charges faced by the applicant in both in her Reasons for Verdict and in her Reasons for Sentence.  He suggests, in effect, that the Judge became lost in the rabbit warren of inferences that she pursued arising from the manuscript notes found on the person of the applicant at the time of his arrest and later at his home.

13. Mr Kelly invites the court to note that in her Reasons for Verdict having noted that in the manuscript notes (P54) found on the person of the applicant at the time of his arrest there is a reference to the name of the third defendant, Davidson, and on another sheet of paper a reference to a series of numbers corresponding closely, but not exactly, to the number on one of the forged credit cards found in the possession of the third defendant at the time of his arrest (charge 18).  The Judge went on to determine of all the names and numbers :

“I infer these are credit card numbers on the forged credit cards distributed to these persons (see also P56 and P62).”

It is to be noted that the three names on that piece of paper, other than the Davidson, were Kwong, Yuen and Chung Lai Hong.  Whilst the latter name appears on the forged credit card the subject of charge 19 there is no reference in the Reasons for Verdict or the Reasons for Sentence to any evidence having been led in respect of the former two names.  P56 and P62 contain references to no less than seven other names in juxtaposition with an individual separate numeric series.  Similarly, no reference is made by the Judge to any related evidence in respect of these names.

14. Of other manuscript entries on the loose papers found on his person and at the home of the applicant, the Judge went on to find :

“D2 also keeps handy telephone numbers of persons who, I infer on all the evidence, he engages to shop for him (see P55 andP61).  On all the evidence I made the only reasonable inference that on 54B, D2 was keeping a tally of sums of money payable to D3 for the purchases he has made with the forged credit cards.”

Those pieces of paper (P55 and P61) contain multiple references to names and nicknames against apparent telephone numbers.  P54B is a single sheet of the “Shell” notepaper containing three arithmetic additions.  Of the latter the Judge concluded :

“… D2 was keeping a tally of sums of money payable to D3 for the purchases he has made with the forged credit cards.”

In the result, the Judge concluded :

“.. it was D2 who was directing his runners, D1 and D3, to make purchases with forged credit cards.”

15. Mr Kelly submits that the Judge compounded the error of her approach to the evidence, given the compass of the charges faced by the applicant, in her Reasons for Sentence.  In particular, he draws to the attention of the court the statement of the Judge :

“The notes with telephone numbers suggest he had quite a stable of persons called on to make purchases for him.  They were paid the standard 10% of the cost of each purchased item.”

Furthermore, criticism is made of the judge’sfinding of the applicant :

“I was satisfied that he, not Liu, was the person directing where D1 and D3 should go, certainly on the day of arrest, 12 November, and what they should buy.”

16. In this context Mr Kelly invites us to note that in the unedited record of interview of the applicant conducted by the police and led in evidence at trial the applicant had said that he had been released from prison only on 15 September 2003.  Mr Shiu accepts that the applicant’s answer is entirely consistent with the applicant’s criminal record, which indicates he was sentenced to a total of six months’ imprisonment on 20 May 2003.  Seven of the charges of which the third defendant was convicted occurred on dates prior to 15 September 2003.

17. In support of his submissions that the Judge erred in identifying a starting point of four years and three months’ imprisonment in respect of the applicant Mr Kelly invites the court to have regard to the five factors, described as not exhaustive, in the judgment of this court in The Queen v. Chan Sui To [1996] 2 HKCLR 128.  Briefly, those factors can be summarised thus :

(i)    the size of the operation;

(ii)    the planning;

(iii)    whether there is an international dimension;

(iv)    the role of the accused; and

(v)    whether there is a plea of guilty.

Of the monetary aspect of the first factor Yang CJ said (p.131H) :

“... we would suggest the present cost of living, amounts up to $50,000 may be considered relatively small, amounts from $50,000-$150,000 medium, and amounts above that may be considered large.”

He went on to say (p.134 A-B) :

“… an accused who plays an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of five to six years after trial.  Sentences may be adjusted upwards or downwards according to circumstances.

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.”

18. In that case the first appellant had pleaded guilty to seven counts of possessing false instruments and one count of possessing equipment for making false instruments.  He had been arrested in possession of four forged credit cards as he emerged from premises, described as a forged credit card factory, in which was found the paraphernalia for the manufacture of forged credit cards, related information and the end product.  The trial judge found the first appellant to have been directly involved in the running of the factory and sentenced him to six years’ imprisonment in total.  The second appellant allowed herself to be used to make purchases with the forged credit cards.  She knew what went on in the factory and the first appellant’s role but she was not essential to the first appellant’s operation.  On her plea of guilty the Judge had sentenced her to five years’ imprisonment.  This court determined that the appropriate starting point in those circumstances was four years’ imprisonment for the first appellant and three years’ imprisonment for the second appellant.  Having quashed the sentences imposed by the trial judge this court imposed a sentence of three years’ imprisonment in total on the first appellant and two years and four months’ imprisonment on the second appellant.

19. Mr Kelly has drawn our attention to the judgment of this court in HKSAR v. Lau Pui Hang, CACC393/2003 (unreported), in which the appellant had been convicted after trial in the District Court of a charge of conspiracy to use false instruments.  He was sentenced to four years’ imprisonment.  The conspiracy appears to have been of short duration.  On the first day the appellant recruited a person to use a forged credit card to make purchases, the resulting proceeds to be shared.  At the instigation of the appellant, a second person was recruited to the conspiracy to occupy a similar role.  At trial both of them were called as witnesses for the prosecution.  On the second day the appellant met them at a restaurant together with a man called “Keung Gor”.  At the request of the latter, the four men went to a toilet in which he supplied the appellant with two Lai See packets.  From them the appellant extracted the two forged credit cards and supplied each of them with a forged credit card.  A successful purchase was made with one of the forged credit cards.  Before any further purchases could be made that they were arrested.  The trial judge had sentenced the appellant to four years’ imprisonment, taking into account the role of the appellant as a “helper” who recruited others for a criminal syndicates and supplied forged credit cards, noting that it had been purely fortuitous that the two persons recruited by the appellant had been caught before their agreement had been implemented fully.  He noted that the two co-conspirators, called as witnesses for the prosecution, had pleaded guilty to substantive offences and had been sentenced to 15 and 18 months’ imprisonment respectively.

20. Stuart-Moore VP, in the judgment of this court in reducing the sentence to one of three years’ imprisonment indicated that the prime concern of the court had been :

“… the relatively small scale of the operation and its limited potential for loss by the use of only two credit cards.”

21. In support of his submission that there is an unjustifiable disparity in the starting point adopted for sentence between the applicant and his former co-defendants, four years and three months’ imprisonment in contrast to three years’ imprisonment, Mr Kelly invites this court to note that that the first defendant was convicted of two charges of obtaining property by deception and one charge of possession of false instruments, namely two forged credit cards, which offences were committed on 9 and 12 November 2003.  By contrast, the third defendant was convicted of a multiplicity of offences beginning on 19 July and culminating with his arrest on 12 November 2003.  During that time he had been arrested and placed on bail on no fewer than four occasions in respect of offences that were part of this criminality.  Both the co-defendants had criminal records, the first defendant having been the subject of a community service order in October 2003 and the third defendant having been convicted of theft and forgery in 1994 and subsequently management of a vice establishment.

RESPONDENT’S REPLY

22. Mr Shiu for the respondent submits that whilst the charges the applicant faced were in respect of substantive offences :

“… the factual matrix they were placed in by the admitted facts and the prosecution evidence was that of the three accused colluding together.”

He submits that the information recorded on the Shell note paper found on the applicant, on his arrest is strongly indicative of not only his collusion with others but also the direction of others and should be reflected in sentence.  He points out that, in addition to the matters specifically noted by the judge, included in the alphanumeric notes are references to at least part of the unique numbers of the forged credit cards, the use or possession of which is reflected in charges 14-16 and 18.  Further, he invites this court to note that other alphanumeric references are to forged credit cards not even the subject of charges.  He submits that in light of the applicant’s possession of information “important in the organisation and execution of the operation” the judge was entitled to find that the applicant played a “directing role”.

23. Of the seriousness “of the operation” Mr Shiu invites this court to have regard to the fact that a total of 14 forged credit cards were used and that one unused forged credit card was found in the possession of the applicant.  Whilst accepting that the operation was relatively small he submits that it was not so small as to put it into the lowest category.  He invites this court to take into account the potential for loss.

24. Of the contention that there is an unfair disparity in the starting points for sentence between the applicant and his co-defendants Mr Shiu submits that the persistence of the third defendant in continuing to commit offences is to be visited upon the applicant in respect of culpability as the “directing mind”.

CONCLUSIONS

25. If the prosecution case was as Mr Shiu has described in his submission it was certainly not reflected in the charges that the prosecution laid against the applicant.  Of course, it was open to the prosecution to have laid a charge or charges of conspiracy to use false instruments, a conspiracy to defraud or multiple substantive charges to reflect his alleged role.  The purpose of a charge in the District Court or a count on the indictment is to confront the defendant with the specific criminality of which he is accused.  Then, the defendant knows the allegations that he has to meet.  That is not to say that in sentencing the court is not entitled to have regard to the circumstances of the commission of the offence.  Of course, in sentencing a handler of stolen goods a court is entitled to have regard to the original theft and to the accused’s degree of connection with it.  In The Queen v. Tang Ho Yeung [1980] HKLR 357 in dealing with an application for leave to appeal against a sentence of three years’ imprisonment imposed for two offences of handling stolen goods, which goods had been the subject of a robbery, this court took into account :

“… the seriousness of the original robbery and the extent to which the appellant associated himself with it by the gradual disposal of stolen goods….” (p.359)

26. In the case of the applicant relevant to sentence in respect of the handling of stolen goods, charge 17, is the fact that the gold necklace in question found around the neck of the applicant was stolen, by means of obtaining by deception by the use of the forged credit card, by the third defendant only 15 minutes earlier.  Clearly, on the evidence led at trial, the applicant was in the company on the third appellant when he returned from yet another mission to obtain property by the use of the forged credit card.  However, the prosecution made no allegation of criminality against the applicant specifically in that regard. In respect of the applicant’s possession of the forged credit card, the subject of charge 19, his culpability in respect of charge 17 and, in particular, the circumstances in which that property had been stolen is relevant in determining his culpability.  In all those circumstances, the judge was entitled to determine that the offences of which she convicted the applicant were committed by him as a party to a forged credit card fraud on 12 November 2003.  The possession by the applicant of the note on which reference was made to a significant part of the number of the forged credit card with which the third defendant obtained the gold necklace, the subject of the handling charge, was relevant to the finding that he was a party to a forged credit card fraud.  The fact that the applicant, not the third defendant, was wearing the necklace was evidence upon which the judge was entitled to find that on that day the applicant played a dominant role vis-a-vis the third defendant.

27. No charges were laid that the applicant had handled any of the other property stolen by the first and the third defendant’s, nor that he had conspired with them, incited or counselled or procured them to possess or use false instruments.  In those circumstances, the judge fell into error in having regard to the documentary exhibits found upon the applicant and at his home upon which she drew inferences of a role by the applicant in the conduct of the first and third defendants’, the subject of other charges, and in respect of the conduct of others not even the subject of charges, none of which conduct was the subject of a charge against the applicant.  In any event, the judge was not entitled on all the available evidence to draw the inference against the applicant, which she did, from the manuscript entries of names, nicknames and telephone numbers that :

“The notes with telephone numbers suggest he had quite a stable of persons he called on to make purchases for him.  They were paid the standard 10% of the cost of each purchased item.”

28. In the result, we are satisfied that the judge was in error to adopt a starting point for sentence in respect of each charge of four years and three months’ imprisonment.  In our judgment, having regard to all the circumstances properly relevant to the commission of the two offences by the applicant the appropriate starting point for each offence is three years’ imprisonment.  We are entirely in agreement with the judge that there were no mitigating factors to reduce the sentence to be imposed.  Accordingly, we granted the applicant leave to appeal against sentence, treated the hearing of the application as the appeal and allowed the appeal to the extent that we reduced the sentence imposed upon the applicant in respect of each charge to three years’ imprisonment, which sentences are to be served concurrently.  The total sentence of imprisonment imposed upon the appellant is three years.