R. v. WONG WAN SHAN

IN THE COURT OF APPEAL

1996, No.256
(Criminal)

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J U D G M E N T

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Power, Ag. C.J.:

1. The applicant in this matter pleaded guilty before Deputy Judge Daniell in the District Court to 17 counts of credit card fraud which occurred between 27th November 1955 and 29th January 1996. In order to appreciate the seriousness of these offences, it is necessary to look at the facts of some of the offences.

2. The first two offences charged involved the handling of a credit card taken from Mr. Au Wai-kong and its use to obtain property. Mr. Au, at about 2:15 p.m. on 27th November 1995, discovered that his wallet was missing. He last seen it earlier in the day. He reported the matter to the police and investigations were undertaken. It was found that at 2:26 p.m. on that day, i.e. very shortly after he found the card was missing, it had been presented to a shop to purchase two leather jackets valued at $5,978. The applicant admitted that he had used the card.

3. We will further detail only the facts relating to the third and fourth charges as this is sufficient to give a flavour of the offences overall. The facts of those two charges revealed that at 11 p.m. on 12 January 1996 Mr. Tay Wing-kit discovered his wallet was missing. When he had last seen it at about 7 p.m. it had contained his credit card. He reported the matter and investigations revealed that, at 8:05 p.m. on that same day, i.e. just an hour after the credit card had been in the possession of the victim, it had been presented to the On Lee Shop in the Furama Hotel and various items of jewellery had been purchased valued at more than $12,000. Again the applicant admitted that he had used the card.

4. The other offences, each of which involved substantial amounts of money, followed a similar pattern. Credit cards were found to be missing which very shortly thereafter were used by the applicant to purchase expensive goods. In all the purchases were to the value of $63,800.

5. These were serious offences. They were calculated and professional and the sentence of 4 years overall imposed by Deputy Judge Daniell was, it is conceded by Mr. Macrae, who appears for the applicant, by no means excessive. Mr. Macrae, however, argues that there were two sets of earlier offences which had been dealt with in the Magistrate's Court in South Kowloon on 14th January 1996 and North Kowloon on 15th February 1996, which the judge failed to take into account when assessing the totality of the punishment being imposed. It is true that the judge makes no mention of the earlier sentences in his Reasons for Sentence. As regards one set of offences, those dealt with on 14th February, this was understandable as these were, for a reason which is not apparent, not shown on the criminal record form handed up to the judge.

6. The offences dealt with on 14th January in South Kowloon Magistracy involved the use of a false instrument, a credit card, possession of that instrument, possession of the identity card of another and obtaining goods by deception. The goods obtained were a video camera and other electronic equipment to the value of $11,410. The offences dealt with on 15th January involved the use of a false credit card to obtain the handbags, belts and wallets to the value of $7,676.

7. The offences dealt with on 14th January had occurred on 27th August 1994. The applicant having been arrested, had absconded. He then committed offences in November of 1994 dealt with on 15th January followed by the offences of November 1955 to January 1996 dealt with by Judge Daniell. By absconding he avoided being sentenced for the offences of August 1994 and gave himself the opportunity to commit the offences of November 1994 and November 1995 to January 1996. He now comes before this court suggesting that it would be proper for us, despite his behaviour in absconding and committing two further series of offences, to assess the totality of sentence upon the basis that there was no absconding and that he came before the court and entered pleas on all offences at the same time. This we decline to do. We consider that the judge was entitled to disregard the sentence imposed on 15th February 1996 and to deal with the matter upon the basis that he should impose a sentence proper for the offences then before him without regard to the earlier sentence. That he was not aware of the sentences imposed on 14th February 1996 is of no moment as he should, had he been aware of them, properly have disregarded them also. Four years was by no means excessive in relation to the offences with which he was dealing and the application must, therefore, be refused.