HKSAR v. CHENG SUI YIN

CACC 468/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

criminal APPEAL NO. 468 OF 2005 

(ON APPEAL FROM DCCC 1252 of 2002 )

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

1.  On 12 July 2002 at about 1 p.m., the applicant – Cheng Sui-yin arrived at the Arrival Hall of the Lowu border control point. She was stopped by a customs officer and was found to be carrying a total of 14 counterfeit Visa and MasterCard credit cards purportedly issued by banks in Hong Kong.

2.  The numbers of the counterfeit credit cards were traced and were found to belong to credit cards issued by banks in England, the Netherlands and Turkey.

3.  Each of the counterfeit credit cards had caused the issuing banks an average loss of about US$ 3,000.

4.  The applicant claimed to have picked up the counterfeit credit cards together with some ketamine tablets at the rear seat of a taxi in Shenzhen.

5.  The applicant was charged with the offence of possession of false instruments, namely the 14 counterfeit credit cards.

6.  The applicant failed to turn up at trial and was convicted in her absence by Judge Line in the District Court. On 4 November 2005, again in her absence, the judge sentenced the applicant to 4 years and 6 months’ imprisonment.

7.  The applicant now seeks leave to appeal against the sentence.

8.  In her written application, the applicant stated that she was discontented with the severe sentence. She emphasized that the sentence was imposed in her absence and that she had surrendered herself and returned to Hong Kong voluntarily.

9.  The applicant submits to us today that she regrets what she did and points out that the offence was committed when she was very young. She asks us to give her a chance to reform herself.

10.  The applicant also submits to us a letter from her family, including her parents and her siblings, pointing out again that she now regrets what she did and that she has decided to turn a new leaf in life. It is suggested that she had not been given a fair trial when she was sentenced in her absence. It is also emphasized that her sentence has a significant impact on her family, particularly her parents and her aged grandparents.

11.  The fact that the applicant chose to be absent at trial and at the time of sentence is certainly not a mitigating factor. However, it was the applicant’s own choice to be absent and such absence could not be said to have led to an unfair trial. The judge, on the other hand, did not treat her absence as an aggravating factor either, although he did comment that the applicant had not been able to put forward any mitigation because of her absence.

12.  The impact of a sentence on an individual, including the accused and his/her family members can be a mitigating factor. However, such a mitigating factor carries little weight when the offence is a serious one.

13.  Credit card frauds are indeed very serious offences as observed by Litton JA (as he then was) in R v Kwan Ying Ho (unrep Crim App No 527 of 1992), “Credit card frauds have in recent years been an insidious poison in the community. It affects a large number of citizens. It erodes the credit card system and damages Hong Kong’s standing in the international community.”

14.  In R v Chan Sui To & Another [1996] 2 HKCLR 128, Yang CJ, after referring to a number of cases involving credit cards, said at p 134:

  “ 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 criterion. 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.”

15.  The evidence suggested that each of the counterfeit credit cards in the applicant’s possession had caused the issuing banks an average loss of about US$3,000.The total loss of US$42,000 (over $300,000) is a large sum.

16.  The reasons for bringing in the counterfeit credit cards are obvious and we cannot ignore the potential losses caused by their possible future use if the applicant had not been apprehended.

17.  In HKSAR v Watt Siu Hung (unrep Crim App No 93 of 2001), the value of the goods obtained on two forged credit cards was slightly in excess of $3,000. The Court of Appeal upheld a starting point of three years’ imprisonment. The court further commented that:

 “There was every reason to believe that but for his arrest he could have continued to use the credit cards.”

18.  In HKSAR v Ng Swee Thiam [2000] 1 HKLRD 772, the court also commented (at p 778) that the amount proved to have been lost by the fraudulent use of the credit cards “pale(s) into insignificance when consideration is given to the potential for losses in the future” and that “it is this potential for losses which is the most important consideration.”

19.  Despite the applicant’s absence at the time of sentence and therefore her inability to place before the judge her mitigation, the judge must have taken into consideration all possible mitigating factors that could be advanced on her behalf. 

20.  We have considered the facts of the case, in particular, the number of counterfeit credit cards and the amount involved. We are of the view that the sentence of 4 years and 6 months, was in no sense manifestly excessive.

21.  The application for leave to appeal against sentence is therefore dismissed.