HKSAR v. KAPANYA CHATRUTHAI

CACC 233/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 233 OF 2011

(ON APPEAL FROM DCCC NO. 359 OF 2011)

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BETWEEN

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J U D G M E N T

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Hon McWalters J (giving the judgment of the court):

Introduction

1.  The applicant pleaded guilty in the District Court before Deputy Judge J Lam to 10 charges in relation to fraud, identity card and immigration offences and was sentenced to a total of 34 months imprisonment.  She applied for leave to appeal this sentence but her application was refused by a single judge of appeal.  She now renews her application before the Court of Appeal as is her right under section 83Y(3) of the Criminal Procedure Ordinance, Cap 221 and asks the court to determine it.

Background

2.  The applicant first came to Hong Kong in 1999 to work as a domestic helper.  Her visa expired in 2004 and she could not renew it.  Nevertheless she remained illegally in Hong Kong until her arrest on 5^th January 2011. Between 2004 and the date of her arrest she committed the offences that are the subject of these proceedings.

3.  The first seven offences all took place in 2010 and concern her fraudulent obtaining of loans from 3 different lending bodies by impersonating a person by the name of YU Nusian, a person she had become friends with in 2003.  This person lost her permanent I.D. card in 2004 and subsequently the applicant purchased a forged version of it.  The applicant used this forged I.D. card in order to impersonate Ms Yu.  Details of the loans that were advanced to her are as follows:

Charge	Name of Victim Lender	Date of Loan	Amount Lent
1	United Asia Finance Ltd	8 April 2010	$40,000
2	United Asia Finance Ltd	10 July 2010	$40,000
3	United Asia Finance Ltd	8 October 2010	$40,000
4	Public Bank	12 July 2010	$70,000
5	Public Bank	22 November 2010	$80,000
6	AEON Credit Service	21 July 2010	$5,000
7	AEON Credit Service	24 October 2010	$15,000

4.  The total amount of monies that the applicant fraudulently obtained was $290,000 but some of the monies were used to repay previously obtained loans. At the time of sentencing the net loss was $130,668 divided amongst the lenders as follows:

United Asia Finance Ltd	-	$38,002
Public Bank	-	$78,043
AEON Credit Service	-	$14,623
		$130,668

5.  The applicant was also charged with two counts of using the forged identity card.  Count 8 relates to the occasion when she presented it to a person who, in reliance upon it, offered her employment and count 9 relates to the occasion she used it to try and obtain banking services from Public Bank.  The final charge, count 10, is the breach of condition of stay offence and it relates to the 7 year period between 2004 and her arrest when she had the status of an overstayer.

The Mitigation

6.  The applicant wanted to stay in Hong Kong and so elected to become an overstayer.  She became indebted as a result of her own spending and because she lent money to her friends which was not repaid.  She overstayed for so long because she was trying to resolve her financial problems, and this was why she applied for the loans.  She expressed the desire and intention to repay the outstanding balances of the loan accounts but the Deputy District Judge who sentenced her did not take that into account.

The Reasons for Sentence

7.  In respect of the fraud charges the Deputy Judge divided them up according to victim and regarded those that related to the same victim as part of a single course of conduct and for which the sentences should therefore run concurrently.  His sentences were as follows:

Charge	Victim	Starting Point	Sentence
1	United Asia Finance Ltd	15 months	10 months
2	United Asia Finance Ltd	15 months	10 months
3	United Asia Finance Ltd	15 months	10 months
4	Public Bank	18 months	12 months
5	Public Bank	18 months	12 months
6	AEON Credit Service	9 months	6 months
7	AEON Credit Service	9 months	6 months

8.  For charges 8 and 9 the Deputy Judge accepted that, on the basis of appellate authority, the correct sentence after plea is 15 months imprisonment and this is the sentence he imposed for each count.

9.  For charge 10 the Deputy Judge found that the defendant had no good reason for staying in Hong Kong and, from a starting point of 6 months, he sentenced her to 4 months imprisonment.

10.  Reviewing all of these sentences the Deputy Judge accepted that he had to apply the totality principle and in so doing recognized that he could not make all the sentences consecutive to one another.  He concluded that the appropriate total sentence was 34 months imprisonment and to achieve this total he ordered that the sentences of charges 1 ‑ 3 be served concurrently with each other and likewise the sentences for charges 4 ‑ 5, 6 ‑ 7 and 8 – 10.  But 6 months of the sentences for charges 4 – 5, 3 months of the sentences for charges 6 – 7 and the whole of the 15 months of charges 8 – 10 be consecutive to one another.  Thus the sentences were as follows :

Charge	Sentence		Consecutive Portion
1 - 3	10 months		10 months
4 ‑ 5	12 months		6 months
6 ‑ 7	6 months		3 months
8 ‑ 9	15 months
10	4 months		15 months
	Total		34 months

Grounds of Appeal

11.  The applicant is unrepresented on the application for leave.  On two occasions she has written to the court in the Thai language setting out her concerns which we shall treat as her grounds of appeal.  In her letters she complains that all her possessions in her residence have been stolen, that a friend to whom she lent money has not repaid her and that she has repaid some of the monies when she returned “the bank card to the government”.  She also makes the point that she never enjoyed use of all the loan monies as some of the monies from the subsequent loans were used to repay the earlier loans.  This she said was the position in respect of the loans the subject of charges 5 and 7.

12.  At the hearing of the application we invited her to supplement her letters with anything further that she might wish to say but she had nothing to add to what was contained in them.

Discussion

13.  The principled approach that the Deputy Judge took to sentencing the applicant cannot be faulted.  He imposed a separate sentence for each offence; he decided to regard the loans from each victim as one course of conduct (a decision which on the facts was one that was open to him) and before considering whether to order that any of the sentences should be served consecutively he gave consideration to the totality principle.  The Deputy Judge made no error of principle in his approach to the sentencing task he had to perform in respect of this defendant.  The only questions remaining therefore are whether, in regard to any of the offences, he adopted too high a starting point and whether the totality which he determined to be appropriate for the overall culpability of this defendant’s conduct was manifestly excessive notwithstanding his correct application of legal principle.

14.  As to the applicant’s concern that the Deputy Judge may have misapprehended the factual position as regards the amount of money she actually received from her fraudulently obtained loans, it is clear that this concern is misplaced.  There is no doubt that the Deputy Judge was fully aware of the monies she received and the balance of her indebtedness.  Nor, it must be said, can complaint be made of his refusal to take into account the applicant’s asserted willingness to make further repayments.  He was quite entitled to take a realistic view of the situation and conclude that the applicant’s statements reflected little more than wishful thinking on her part.  At their highest they may have evidenced remorse on her part but they did not provide a basis for the Deputy Judge finding that the losses to the victims would be any less than the amounts then owing.

15.  This applicant pleaded guilty to a calculated course of criminal conduct which involved her using a forged identity card in order to obtain loan monies in the name of another.  She was only caught because she used the forged identity card once too often.  The total amount of the loss is not insubstantial.  Neither the starting points for any of the fraud offences nor the total sentence of 19 months for them can be said to excessive.

16.  The sentences of 15 months imprisonment for the use of a forged identity card that are the subject to the 8^th and 9^th charge are in accordance with Court of Appeal authority and cannot be criticized. (See HKSAR v Li Chang Li [2004-2005] HKLRT 193).

17.  The sentence for the offence in charge 10 of overstaying is consistent with sentences for this type of offence and, in any event, was ordered to be served concurrently with the sentences for charges 8 and 9.

18.  Finally it is necessary to stand back and view the total sentence of 34 months against the whole of the defendant’s culpability and assess whether it is fair to the defendant in the sense of not punishing her twice for the same conduct and further not imposing on her a crushing punishment that is disproportionate to her culpability, but is a sentence that is “sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation” (see HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 at paragraph 22 quoting from R v K M [2004] NSWCCA 65 at paragraph 55).

19.  There is nothing in the Deputy Judge’s Reasons for Sentence to indicate he misunderstood his task in applying the totality principle nor can the end result be said to be manifestly excessive.  We see no merit in any of the matters that the applicant wishes to raise in her appeal and accordingly her application for leave to appeal sentence is refused.