HKSAR v. LAU PUI HANG

CACC 393/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 393 OF 2003

(ON APPEAL FROM DCCC 424 OF 2003)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Introduction

1. On 2 September 2003, the Applicant, aged 28, was convicted, following a trial in the District Court before Judge Line, of conspiracy to use false instruments, namely two Master Cards, contrary to sections 73, 159A and 159C of the Crimes Ordinance, Cap. 200.

2. The Applicant was sentenced to four years' imprisonment against which he now seeks leave to appeal.

The facts

3. The facts were relatively straightforward. These revealed that on 25 November 2001, after the Applicant had been introduced to Lai Siu-wai (PW2), the Applicant suggested that he could supply him with some forged credit cards. PW2 would then use the credit cards to make purchases after which these acquisitions would be given to the Applicant and sold. The proceeds would then be split between them. In addition, the Applicant suggested that PW2 should find another person to join him in purchasing goods who would also be given a share of the proceeds.

4. In due course, PW2 asked an acquaintance, Tsui Kin-lam (PW1), to join in and he agreed.

5. On the next day, 26 November 2001, PW1 and PW2 met the Applicant at a restaurant. The Applicant's girlfriend and a man called "Keung Gor" were also there. The four men, at Keung Gor's request, then went into the toilet. Once there, Keung Gor provided the Applicant with two lai see packets out of which the Applicant took the two forged credit cards, the subject of the conspiracy charge. The Applicant then handed these to PW1 and PW2. Using a pen provided by the Applicant, PW1 and PW2 then each signed a card in the name embossed on them. Both cards purported to be credit cards issued to someone named Chan Ka-wai.

6. The group then left the restaurant, and went to make a test purchase to see if the credit cards worked. They went to a shop nearby and, using one of the cards, successfully made a purchase with it.

7. They all then made their way to Wanchai to visit a shop which sold mobile telephones intending to make use of the credit cards there. Just after leaving the MTR station, and before they had arrived at the shop, PW1 and PW2 were stopped by the police because of their suspicious manner. They were then found in possession of the forged credit cards. The others who had been with them dispersed.

8. Later, when interviewed, PW1 and PW2 implicated the Applicant as a result of which he was arrested in April 2002. They also gave evidence against the Applicant at his trial having, by that stage, begun the prison sentences imposed on them for their part in the conspiracy.

Sentencing

9. In passing sentence on the Applicant, the judge took into account a number of matters. These included the fact that the Applicant had been operating in a position which was subordinate to Keung Gor as a "runabout" or "helper" who recruited others for a criminal syndicate that supplied forged credit cards. The judge indicated that if Keung Gor had been before the court, he would have taken in his case a starting point after trial of six years' imprisonment.

10. The judge expressed the view that the mischief resulting from the Applicant's conduct was "much greater than just obtaining a few phones on one occasion". His job was "to launch two usable forged credit cards and put them into the hands of people willing to use them". It was "mere chance" that police were able to catch PW1 and PW2 at an early stage.

11. The judge noted that PW1 and PW2 had been sentenced to fifteen months and nineteen months' imprisonment respectively. In these proceedings, we were informed that they were each sentenced for substantive offences and that in PW2's case, one month of his sentence was related to an unconnected charge of the possession of cannabis. Their involvement was, as the judge rightly expressed it, "less grave" than the Applicant's and they, unlike the Applicant, had pleaded guilty. Doubtless, they would each at that stage of the proceedings have received the usual discount on their sentences of a third for their pleas.

12. The judge concluded by saying that the Applicant: "even in the humble capacity in which (he) worked", by working for a criminal syndicate merited a starting point of four years' imprisonment.

Grounds of appeal

13. Against this background, Mr Albert Poon, on the Applicant's behalf, submitted in a number of grounds that a sentence of four years was manifestly excessive. In effect, he contended that the judge had failed to take into account a number of features of the case which lessened the Applicant's culpability and, by their omission, gave rise to the adoption of a starting point which was too high.

14. We do not need to rehearse the many factors raised by Mr Poon in his written argument which discloses considerable industry on his part.

15. In essence, he relied on the sentencing guidelines for cases such as this which were provided by this court in R v Chan Sui-to & Anor [1996] 2 HKCLR 128. In that case, where a number of previous sentencing decisions relating to the fraudulent use of credit cards were considered, it was pointed out (at p. 131) that it was "not easy to reconcile the sentences". The judgment continues by stating that:

".... in general we apprehend that a sentencing judge would need to consider various factors including:

1.	The size of the operation e.g. whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards.
2.	The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent.
3.	Whether there is an international dimension.
4.	Whether the accused played a major role, e.g. running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he is a mere 'cog in the wheel' as a courier or a custodian or keeper.
5.	Whether there is a plea of guilty.

In considering whether large sums of money were involved, we would suggest that, at the present cost of living, amounts up to $50,000 may be considered relatively small, amounts from $50,000 to $150,000 medium, and amounts above that may be considered large..... It goes without saying that the five factors mentioned above are not intended to be an exhaustive list."

16. In the light of the modern-day practice of discounting a sentence by a third following a timely plea of guilty, the fifth factor in R v Chan Sui-to (above) does not materially add to the four principal considerations to be kept in mind, all of which relate to the gravity of the offence or the offender's role in it.

17. The court in that case, having reviewed ten previous sentencing decisions involving offences of a similar kind, went on (at p. 134) to say:

"Allowing for the different facts and the varying degrees of culpability, it is impossible to formulate a set of principles of sentencing from those decisions. We think however it would be helpful to the courts if they were guided by some (criteria). We would therefore suggest that 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. The last observation is particularly important in cases of this kind where the potential for creating large-scale losses to banks and credit card companies is enormous. In the present case, as the judge had rightly indicated, it was purely through good fortune that PW1 and PW2 were caught before their agreement with the Applicant could be fully implemented.

19. Whilst it is true that the Applicant came before the court with a minor criminal record which bore no relation to the present type of offence, a deterrent sentence will usually be called for in respect of credit card offences which are easily committed and where the culprits are hard to catch.

20. With all of these considerations in mind, our main concern has centred on whether the Applicant has received a sentence which was disproportionately lengthy bearing in mind the relatively small scale of the operation and its limited potential for loss by the use of only two credit cards. Looking at the facts in R v Chan Sui-to (above), the appellant in that case not only carried four counterfeit credit cards and a number of other fraud-related items, but he was closely connected to a factory which was equipped to manufacture other counterfeit credit cards. This court indicated that a four-year sentence before plea was appropriate. We consider that the Applicant's criminality was at a lower level to this and that, in all the circumstances, his sentence was manifestly excessive.

Conclusion

21. Accordingly, we shall give leave and, treating the hearing as the appeal, we propose to reduce the sentence from four years to one of three years' imprisonment. To this extent, the appeal succeeds.