ATTORNEY GENERAL v. CHAN YET WAI and Others

IN THE COURT OF APPEAL

1993, No. 14
Application for Review

_______________

_________________________________________

J U D G M E N T   O F   T H E   C O U R T

_________________________________________

Macdougall, V.-P.:

1. Leave was granted by the Chief Justice on 19 November 1993 to the Attorney General to apply for review of the sentences passed on the respondents by His Honour Judge Wilson in the District Court.

2. The 1st applicant had pleaded guilty to four charges of obtaining property by deception contrary to section 17(1) of the Theft Ordinance, Cap 210, to one charge of using a false instrument contrary to section 73 of the Crimes Ordinance, Cap 200, one charge of conspiracy to defraud contrary to common law, one charge of possession of a false instrument contrary to section 75(1) of the Crimes Ordinance and one charge of illegal possession of an identity card contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177. Apart from the conspiracy charge with which he was jointly charged with the 2nd and 3rd respondents, the 1st respondent was the sole defendant in the other charges.

3. The obtaining property by deception charges related to offences which were committed on 17th and 18th of September 1992 and in the course of which the 1st respondent dishonestly obtained various items of jewellery of a total value of $122,000 by falsely representing that he was authorised to use two credit cards in the name of another person. For these offences he was sentenced to concurrent terms of one year's imprisonment.

4. The possession of false instruments charge related to his unlawful possession on 23 October 1992 of 12 forged credit cards. On this charge he was sentenced to two years' imprisonment.

5. The illegal possession of an identity card charge related to his possession on 23 October 1992 of an identity card in the name of another person. For this offence he was sentenced to one year's imprisonment.

6. The conspiracy to defraud charge, which was the only offence which concerned all three respondents, related to their having conspired on 22 October 1992 to defraud merchants, banks and the account holder of a Visa Card by presenting that card to obtain a variety of goods. They then carried their conspiracy into effect by engaging in a buying spree within a period of several hours on the same day at various shops in Tsimshatsui and at the Park Lane Square branch shop of City Chain of which the 2nd respondent was the manager. The goods involved were cosmetics, sports clothes and shoes and two watches, one of which was obtained from the City Chain Shop. The value of these goods totalled about $20,000. Details of the respondents' activities in obtaining these goods are set out in the judgment of this court in criminal appeal 695 of 1993 refusing the applications of the 2nd and 3rd applicants, who had been convicted after a contested trial, for leave to appeal against conviction. We do not propose to repeat those details.

7. The judge sentenced the 1st respondent to 1 year's imprisonment on the conspiracy charge and ordered that the sentences on all charges be served concurrently. The overall sentence imposed on the 1st respondent after his pleas of guilty was therefore two years' imprisonment. The 2nd and 3rd respondents were each sentenced to nine months' imprisonment suspended for two years on the conspiracy charge.

8. Mr Zervos, who appeared for the Attorney General, on this application for review of sentence, submitted that the overall sentence of two years' imprisonment passed on the 1st respondent failed wholly to reflect the gravity of his criminality and that since the obtaining of property by deception offences and the conspiracy were committed on separate and distinct occasions the judge erred in passing concurrent sentences. The effect of passing concurrent sentences for all these offences was that the 1st respondent went largely unpunished for the obtaining of property by deception and other substantive offences which were completely unrelated to the conspiracy. Moreover, the judge failed to have due regard to the seriousness and prevalence of offences involving the fraudulent use of credit cards and to be guided by the decisions of this court in R. v. Wong Fu-keung, Criminal Appeal No. 5 of 1991 (unreported), R. v. Kwai Ying-ho Criminal Appeal No. 527 of 1992 (unreported) and Attorney-General v. Chan Pui-sang, Application for Review No. 16 of 1993 (unreported).

9. Mr Zervos also submitted that the suspended sentences imposed on both the 2nd and 3rd respondents, not only wholly failed to give due recognition to the seriousness and prevalence of offences involving the fraudulent use of credit cards, but ignored the fact that these respondents, having contested the issue of guilt, could lay no claim to leniency on the ground of remorse.

10. He further submitted that the evidence disclosed that in carrying the conspiracy into effect the 2nd respondent was largely responsible for the presentation of the forged credit card to the merchants who were defrauded, and that he had abused his position of trust as manager of the branch of City Chain by aiding in the theft of the watch from that shop and disguising the crime by creating bogus documentation with the false credit card used to commit it. It was also contended that the judge was in error in assuming that the 2nd respondent "seems to have gained nothing at the end of the day" and that the 2nd and 3rd respondents "were dominated" by the 1st respondent.

11. We repeat and emphasise what was said in the cases referred to above. The sentences passed on the 1st respondent, who was 27 at the time of these offences, failed to take into account the extent of his criminality. In our view it was wrong of the judge to pass wholly concurrent sentences. Bearing in mind the number of offences committed by this offender, we consider that a starting point of six years' imprisonment would have been appropriate. In the light of his pleas of guilty an overall sentence of four years' imprisonment should have been imposed.

12. We therefore grant the application and, in order to give effect to the totality principle, substitute concurrent sentences of two years' imprisonment for the concurrent sentences of one year's imprisonment on each of the obtaining property by deception charges. We order that those concurrent sentences be served consecutively to that of two years' imposed in respect of the possession of false instruments charge, but concurrently with the concurrent sentences passed for the conspiracy to defraud and illegal possession of an identity card charges.

13. The suspended sentence passed on the 2nd respondent was also wrong in principle. He was 26 at the time of the hatching of the conspiracy and the commission of the substantive offences carried out in pursuance of it. His breach of trust in being a party to the theft of the watch from the shop of which he was the manager was an aggravating factor. We allow the application for review of his sentence and substitute an immediate custodial sentence of eighteen months' imprisonment for the suspended sentence passed by the judge.

14. The case of the 3rd respondent caused us considerable anxiety. While we accept the force of the submissions made by Mr Zervos we think that it is reasonable to conclude on the evidence before the judge that this respondent, who was 20 at the time of the offence, was dominated by the other two respondents. Although Mr Macrae, who appeared in this court for the 3rd respondent, frankly conceded that for an offence of this nature probation would not have been appropriate, the judge should nevertheless have called for Training Centre, Detention Centre and probation reports in respect of this respondent before passing sentence on him.

15. The position now is that the 3rd respondent has become an adult and can no longer be made the subject of an order for detention in a Training Centre. We have come to the conclusion that, although we think it right to allow the Attorney General's application, it would not be appropriate in the circumstances of the 3rd respondent's case to disturb the sentence passed on him. We so order.