HKSAR v. WONG WAN SHAN

CACC 9 & 10/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO. 9 & 10 OF 2002

(On Appeal from DCCC 663 & 882/2001)

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J U D G M E N T

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Hon Lugar-Mawson J: (giving the judgment of the Court)

Background

1. We are concerned with applications for leave to appeal against sentence in two inter-connected District Court cases, DCCC 663 of 2001 and DCCC 882 of 2001, in which the Applicant, Wong Wan Shan, was a defendant.

DCCC 663 of 2001

2. On 27 November 2001, the Applicant who was the 3rd defendant named on the District Court charge sheet, and two other men appeared before Deputy Judge Wyeth in the District Court for the start of the trial that was listed to last for 10 days and which would have involved 40 prosecution witnesses. This was DCCC 663 of 2001. On 29 November, two days after the trial had started, the Applicant reversed his pleas and pleaded guilty to seven charges on the District Court charge sheet, that is three charges of handling stolen goods, three charges of obtaining property by deception and one charge of attempting to obtain property by deception. The remaining charges, numbers 13, 15, 18 and 20 on the charge sheet, were left on the court file marked 'not to be proceeded with without the leave of the court'. Mitigation was given on the following day, 30 November 2001 and sentence was adjourned to 12 December 2001.

DCCC 882 of 2001

3. On 30 November 2001, in DCCC 882 of 2001, the Applicant pleaded guilty to one charge of theft and one charge of attempting to obtain property by deception before the same judge. The Applicant was the sole defendant in this case. Sentence was adjourned to 12 December 2001. The same counsel represented the Applicant in both cases.

4. On 12 December 2001, the Judge sentenced the Applicant to a total of 4 years and 8 months imprisonment in respect of DCCC 663 of 2001 and to a total of 2 years and 8 months imprisonment in respect of DCCC 882 of 2001; the Judge ordered that he serve half of those sentences consecutively to those imposed in DCCC 663 of 2001. This meant that the Applicant was required to serve a total of 6 years imprisonment for his offences in the two cases. The individual sentences were follows:

In DCCC 663 of 2001:

Charges 16, 17 and 21, which were committed on 12 February 2001.
Charge 16 -	an offence of obtaining property by deception, the Judge took a starting point of 4 years and reduced it to 2 years and 8 months imprisonment;
Charge 17 -	a charge of obtaining property by deception, the Judge took a starting point of 4 years and reduced it to 2 years and 8 months imprisonment;
Charge 21 -	a charge of handling stolen goods, the Judge took a starting point of 2 years and reduced it to 16 months imprisonment. The subtotal in respect of that group of charges was 2 years and 8 months imprisonment. All to run concurrently with each other.
Charges 14 and 19, which were committed on 17 April 2001
Charge 14 -	a charge of obtaining property by deception, the Judge took a starting point of 3 1/2 years and reduced it to 2 years and 4 months imprisonment;
Charge 19 -	a charge of handling stolen goods, the Judge took a starting point of 2 years and reduced it to 16 months imprisonment. The subtotal in respect of that group of charges was 2 years and 4 months imprisonment to run concurrently with each other, but with 12 months of those sentences to run consecutively to the sentences on charges 16, 17 and 21.
Charges 22 and 23, which were committed on 14 May 2001
Charge 22 -	a charge of handling stolen goods, the Judge took a starting point of 2 years and reduced it to 16 months imprisonment;
Charge 23 -	a charge of attempting to obtain property by deception, the Judge took a starting point of 3 1/2 years, reduced it to 2 years and 4 months imprisonment. The subtotal for that group of charges was 2 years and 4 months. All these to run concurrently with each other, but 12 months of them were ordered to run consecutively to the sentences imposed in respect of charges 14, 16, 17, 19 and 21.

In the second case DCCC 882 of 2001 - where the offences were committed on 7 September 2001; for the 1st charge of theft, the Judge took a starting point of 2 years and reduced it to 16 months imprisonment and for the 2nd charge of attempting to obtain property by deception, the Judge took a starting point of 4 years and reduced it to 2 years and 8 months imprisonment. The total of the sentences in that case was 2 years and 8 months, running concurrently with each other, but 16 months of which were ordered to run consecutively to the sentences imposed in the first case, DCCC 663 of 2001.

Ground of Appeal

5. The Applicant now seeks leave to appeal against his sentences. He represents himself before us, having been refused legal aid. Essentially, it is his claim that the length of the sentences he received is manifestly excessive.

Facts

6. The Applicant is a credit card thief and a fraudster. We take the facts of the charges he pleaded guilty to in DCCC 663 of 2001 first; they fall into three groups, categorized by their dates of commission.

DCCC 663 of 2001

7. Charges 16, 17 and 21 are the first in time. At about 1 p.m. on 12 February 2001, a Mr Lee Kam Hung arrived at a Chinese Restaurant in Tseung Kwan O to take lunch. He hung his jacket on the back of his chair, his wallet was in its inner pocket and someone picked his pocket, and stole his wallet as he ate. In it was a Standard Chartered Bank Mastercard.

8. About 15 minutes later, at about 1:15 p.m., the Applicant entered the Chow Sang Sang Jewellery Shop in Tseung Kwan O and purchased a man's gold wrist watch worth $37,720 with Mr Lee's Mastercard. The sales assistant who served him later identified him after his arrest. This gave rise to the 16th charge of obtaining property by deception and the 21st charge of handling stolen goods.

9. On the same day, at about 2 p.m. and therefor 45 minutes after his first offence, the Applicant used Mr Lee's Mastercard to purchase a digital video camera worth $14,700 from the Chung Yuen Electrical Company Ltd in Tseung Kwan O. He left his fingerprint on the credit card payment slip. This gave rise to the 17th charge of obtaining property by deception.

10. The next group of charges in time are charges 14 and 19. The facts are these: At midday on 17 April 2001, a Mr Fan Tat Ho was taking lunch at the Chinese restaurant in the Hong Kong Convention and Exhibition Centre in Wanchai North. He had his credit card cardholder in the inner pocket of his jacket. The cardholder contained his Dao Heng Bank Visa Card. Some one picked his pocket as he ate and stole his credit card cardholder.

11. At about 1:50 p.m. on the same day, the Applicant purchased a ladies watch from the Philippe Charriol shop in the Landmark in Central for $37,315 using Mr Fan's Visa Card. The security CCTV system at the shop recorded the Applicant making this purchase. This gave rise to the 14th charge of obtaining property by deception and the 19th charge of handling stolen goods.

12. The next group of charges are those in charges 22 and 23. The facts are these: At about 12:30 p.m. on 14 May 2001, a Mr Hung Yuk Hung arrived at a Chinese restaurant at the Landmark in Central for lunch. He had his wallet in the inner pocket of his blazer, which he hung over at the back of his chair. His wallet contained his Diner's Club Card and his Merrill Lynch Visa Card. He was as equally unfortunate as Mr Lee and Mr Fan, for, again, some one picket his pocket as he ate and stole his wallet.

13. Around 1 p.m. on the same day, the Applicant entered Jewellery Flair Ltd's shop in Century Square in D'Aguilar Street, Central and selected a diamond ring worth $55,000 He produced both of Mr Hung's credit cards in payment, saying $15,000 was to be debited to one and $40,000 to the other. As the ring was of high value, the sales assistant asked the Applicant to produce his Hong Kong Identity Card. He produced a driving licence. The assistant insisted that she must see his Identity Card. The Applicant said that he had left it in his car and would go and get it. He left the shop without taking Mr Hung's two cards with him. Needless to say, he never returned to the shop. However, the shop's security CCTV system had recorded this transaction. This gave rise to 22nd charge of handling stolen goods and 23rd charge of attempting to obtain property by deception.

The Applicant's first arrest

14. At about 1:48 p.m. on 4 June 2001, the Applicant and the two other defendants in DCCC 663 of 2001 were seen by a party of police officers acting furtively and lingering on the pavement outside No. 33 Queen's Road, Central. The officers followed them, keeping them under observation. They were later arrested and two other men were found to have committed offences of a similar nature on that day. The Applicant was granted bail.

DCCC 882 of 2001

15. We now turn to the facts of the two charges in DCCC 882 of 2001. Both offences were committed on 7 September 2001. Around 12:24 p.m. on that day, a Mr Cheung Chun Yim was having lunch with a friend in a Chinese restaurant at the Luk Yeung Sun Chuen Shopping Centre in Tsuen Wan. He hung his jacket, with his wallet inside its inner pocket, on the back of his chair. His pocket was picked and his wallet taken as he ate. In his wallet were his 3 credit cards: a Chase Manhattan Bank Visa Card, a Hong Kong Bank Superease Card and a Dao Heng Bank Visa Card, as well as cash and his Identity Card.

16. At around 1:30 p.m. on the same day, the Applicant entered the Fortress shop in Chung On Street, Tsuen Wan and asked to look at a Sony digital video camera. He said he would buy it. It cost $12,591, he offered Mr Cheung's Dao Heng Bank Visa Card in payment and signed the credit card sales slip. Unfortunately for the Applicant, it was while he was completing the transaction that Mr Cheung discovered his wallet had been stolen and he had the presence of mind to make an immediate report of the loss of his credit cards to the issuing bank's card centres. The fact that one of his cards was being used at the time of the report was noticed by the staff at the Dao Heng Bank card centre and they telephoned the sales assistant at the Fortress shop asking her to delay the transaction with the Applicant while they contacted the police. The sales assistant pretended that the credit slip printer was out of order in order to keep the Applicant within the shop. He was still there when the police arrived and arrested him. Mr Cheung's Identity Card and his two other credit cards were found in his possession. The Applicant later admitted that he had stolen all three credit cards for his own use. These offences led to the charges of theft and attempting to obtain property by deception in DCCC 883 of 2001.

The Applicant's criminal record

17. Prior to these offences the Applicant had twenty-five previous convictions for offences of a similar nature, starting in 1996. There are ten convictions for obtaining property by deception or attempting to do so; six for handling stolen goods; two for possessing a false instrument; two for using a false instrument; one for theft and four for using another's Identity Card. The last time he went to jail was in April 1996, when he was sentenced to 4 years' imprisonment in the District Court on a 17 count charge sheet for offences of handling stolen goods, obtaining property by deception, attempting to obtain property by deception, and using others Identity Cards. His last conviction was for theft, for which he was fined $6,000 on 12 May 2001 at San Po Kong Magistrates Court. It was only two days after that conviction that he committed the offences in charges 22 and 23 in DCCC 663 of 2001.

18. The Applicant is 42, he was born on 26 May 1959. The Judge was told that he came to Hong Kong from the Mainland in 1987. He has a wife and children in the Mainland. He worked as a clerk in a trading company in the Mainland and as a clerk in a massage parlour in Hong Kong.

Discussion

19. There is no tariff for these offences for each case must depend on its own facts. Handling stolen goods carries a maximum penalty of 14 years' imprisonment, obtaining property by deception carries a maximum penalty of 10 years' imprisonment, as does theft.

20. This court has said, on may occasions, that credit card frauds are an insidious poison in the community; one which affects a large number of citizens and erodes the credit card system, and also damages Hong Kong's standing in the international community. This court has also said that those who engage in it can expect to be dealt with severely by the courts. See: R v Wong Fu Keung Crim App No. 5 of 1991 (unreported). Nothing has happened since 1991 that causes us to doubt that sentiment, save that the use of credit cards has become far more widespread and the opportunities for their fraudulent use has increased as a consequence.

21. These offences in both cases were committed over a lengthy period of time. The Applicant clearly had not been deterred from further offending either by his conviction for theft on 12 May, or his arrest on 4 June. He is a persistent offender. It is clear from the facts that he must have been acting in concert with others as part of an accomplished thieving syndicate operating throughout Hong Kong; one that was targeting seemingly prosperous men and using their stolen credit cards to purchase high value items which could be easily fenced. The speedy way in which the obtainings followed the thefts permits of no other inference. On the facts of DCCC 663 of 2001, it would be naive in the extreme to think that the Applicant was not closely involved in the thefts of the three victims' credit cards. We are not dealing with a case where the accused knowingly used a stolen credit card to purchase goods, but had nothing to do with the original theft.

22. The Judge imposed concurrent sentences for each group of charges referable to one course of criminal conduct; which accords with principle. He has equally followed principle in ordering that the Applicant serve his sentences for the groups of offences partly consecutively. The fact that he ordered partly consecutive sentences indicates that he was aware of, and followed, the totality principle.

23. Technically, the Judge was wrong, to say without more, in his reasons for sentence in DCCC 882 of 2001 that his sentencing jurisdiction was limited to seven years' imprisonment. The limitation in the proviso to section 82(2)(a) of the District Court Ordinance upon the aggregate terms of imprisonment that a District Court Judge may pass when imposing sentences, which are wholly or partly consecutive, is confined to those situations in which the sentences are imposed by the same judge on the same occasion; see: R v Yuen Shek On [1987] HKLR 736. In R v Chan Fook Hung [1991] 2HKLR 519, this Court held that even if the sentence in the second case was imposed by the same judge who passed sentence in the first case, the limitation in the proviso did not apply as it was not passed on the same occasion.

24. The Judge gave the Applicant a one-third discount from his starting point sentence for every charge to reflect his guilty pleas; that too accords with current sentencing practice.

25. The simple question in this case is: is the totality of the Applicant's sentences too long? For a man as audacious and hardened to offending as this Applicant is, we do not believe that it is.

Decision

26. The Applicant's application for leave to appeal against sentence is dismissed.