R. v. OSCAR C. AMBAS and Another

IN THE COURT OF APPEAL

1994, No. 441
(Criminal)

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J U D G M E N T

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Macdougall, V.-P.:

1. The first applicant was convicted on his pleas of guilty before His Honour Judge Caird in the District Court on one charge of obtaining property by deception, two charges of attempting to obtain property by deception and one charge of possession of a false instrument. Having been sentenced to concurrent sentences of three years and four months' imprisonment, he now applies for an extension of time within which to apply for leave to appeal against sentence.

2. The second applicant was convicted on the first three charges and on a charge of possession of a false instrument which was different from that on which the first applicant was convicted, and was sentenced to the same consecutive terms of imprisonment as those passed on the first applicant. He applied for leave to appeal against sentence.

3. The facts of the first charge were that both applicants went to a jewellery shop where, in order to purchase goods valued at HK$17,500, the second applicant presented a Visa card in the name of Marvin L. Koepp. The first applicant selected a diamond bracelet and a ring valued at $17,000 and produced a Visa card in the name of R.D. Leighton. The shop owner, on checking and finding that the limit on that account had been exceeded, called the police. With that, the applicants left the shop and proceeded to another shop where they selected four gold bracelets. The second applicant produced a Visa card in the name of James P. Lewis. However, their criminal venture was brought to a halt by the arrival of the police.

4. The completed sale in the first shop was the subject of first charge and the attempted purchase in the first shop formed the subject of second charge. The attempted fraudulent purchase in the second shop formed the subject of the third charge. The possession of a false instrument charge against the first applicant concerned his possession of two false divers' licences whilst that against the second applicant concerned his possession of three false drivers' licences.

5. In passing sentence the judge took into account the fact that both applicants had pleaded guilty. Notwithstanding that, he was of the view that substantial terms of imprisonment were called for. He observed that the applicants had been caught red-handed while attempting to commit an offence and that, at the time of arrest, the second applicant had in his possession items of jewellery and a Visa card slip that related to the offence which he had committed in the first shop. Both applicants now express contrition and undertake never to return to Hong Kong to commit offences in the future.

6. Mr William Chan, who appeared on behalf of the second applicant, submitted that since the second applicant was 19 years of age at the time of his conviction the judge erred in not obtaining and considering information concerning his circumstances for the purpose of deciding whether there was any manner of dealing with him other than by imprisonment.

7. In our view there is no real substance in this submission. The second applicant is not a citizen of Hong Kong. We have observed on many previous occasions that orders for detention in a training centre or detention centre are appropriate only for Hong Kong residents. For the judge to have called for such reports in respect of the second applicant would have been an exercise in futility.

8. We are of the opinion that the sentence imposed on the first applicant, who is aged 28, was neither manifestly excessive nor wrong in principle. This court has repeatedly stated that credit card fraud offences are prevalent in Hong Kong and that those who commit them must expect to receive heavy sentences. Foreigners who make lightning forays into Hong Kong with the object of making quick profits from criminal ventures must be discouraged. The pickings are rich and, because of the fact that by the time their offences are detected they have usually left the jurisdiction with their ill-gotten gains, the risk of apprehension is greatly reduced. By good fortune, the applicants' crime spree was thwarted. No good reason was advanced to account for the first applicant's failure to lodge a timeous application for leave to appeal against sentence. His application was therefore refused.

9. As far as the second applicant is concerned, however, we think that the judge failed to take into account that because of the wide difference in their ages, the second applicant was in all likelihood under the influence of the first applicant. In our opinion the judge should have made a distinction between the applicants on that account and have passed sentence accordingly.

10. We therefore granted the second applicant's application and, treating the hearing as that of the appeal, allowed the appeal and reduced his sentence to one of two and a half years' imprisonment.