HKSAR v. POON CHO SHU

HCMA 33/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 33 OF 2004

(ON APPEAL FROM ESCC 3851/2003)

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J U D G M E N T

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1. The Appellant was convicted after he had pleaded guilty of one charge of attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance, Cap. 210.

2. The fact of the case show that on the day of the offence, the Appellant had gone into the shop to buy a gold necklace which was valued at HK$6,500 and presented his Standard Chartered Bank Visa Card to settle the bill. After the salespersons checked with the card centre, they found that the visa card that the Defendant had given was a fake credit card. At that time the Defendant had fled from the shop. Subsequently the Defendant was arrested and the Defendant was identified at an identification parade by the salespersons.

3. The Defendant is in his 40's and had 4 previous convictions at the time of this offence and one of those related to 3 similar offences. He was sent to prison for those offences.

4. The learned Magistrate in considering sentence referred to the cases of Johnny Cheung Ka Woo, CACC 136 of 2001 and CACC 153 of 2001 and Mr Chan Yip Chi, and having considered that the Court of Appeal had in the past said that a starting point of 3 years would not be inappropriate for this type of offence. The learned Magistrate considered that a 2-year starting point was set in this case and having given 1/3 off for his plea of guilty, the Appellant was sentenced to 16 months imprisonment.

5. The Appellant today appeals against sentence basically on the ground of disparity, he proceeds with disparity. He considered that the sentence was too high because he said in other cases which was before the Magistrate's Court around the same time where one person was given 10 months imprisonment for 15 charges in February this year and others were given much lesser sentence than he was given.

6. As observed by Mr Ozorio, these cases which the Appellant had referred me to, I did not know the fact, each case turns on its own fact with the seriousness of a particular case depends on the fact in that particular case and merely by placing the number of months or years at the reason for reducing the present sentence is not a right and proper thing to do.

7. This court has to consider whether in all the circumstances that this sentence was manifestly excessive or wrong in principle. It is in fact Mr Ozorio has submitted this case Mr Chan Yip Chi, CACC 153 of 2001 where the defendant in that case had pleaded guilty to four counts and he was sentenced to 6 years starting point but was reduced on appeal to 3 years starting point.

8. It is clear therefore that the sentence in this type of case is varied, having considered the circumstances of this offence where a fake credit card was used to try and buy jewellery, the shop did not loose any money due to the diligence of the credit centre and the sales staff.

9. So in those circumstances, I do not consider that a 2-year starting point adopted by the learned Magistrate was, in anyway, manifestly excessive or wrong in principle and so the 16 months sentence that was given to the Appellant is a reasonable one in the circumstances. So, there is no ground to up set the sentence of the learned Magistrate and the appeal is therefore dismissed.