HKSAR v. SO KIN FAI

CACC 475/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 475 OF 2007

(ON APPEAL FROM DCCC NO. 826 OF 2007)

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J U D G M E N T

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Hon Beeson J (giving the judgment of the Court):

1.  The Applicant was charged with and pleaded guilty to 11 charges before Deputy District Judge Chow.  Charge 1 was custody or control of counterfeit notes with intent, Charge 2: possession of false instruments, Charge 3: possession of a dangerous drug, Charge 4: possession of an identity card relating to another person, Charge 5: possession of forged identity cards, Charges 6 to 11: conspiracy to defraud.

2.  On each of Charges 1 and 2, he was sentenced to 2 years’ imprisonment, on Charge 3, to 2 months’ imprisonment; on Charge 4, to 2 months’ imprisonment, on Charge 5, to 12 months’ imprisonment and on each of Charges 6 to 11, to 16 months’ imprisonment.

3.  The sentences for Charges 1 to 5 were ordered to be concurrent amounting to 2 years’ imprisonment in all.  For Charges 6 to 11, 6 months on each charge were ordered to run consecutively to the sentences on Charges 1 to 5.  The total sentence on these charges was 3 years’ imprisonment and on the indictment as a whole, the Applicant was left with a sentence of 5 years’ imprisonment.

4.  The Applicant applied for leave to appeal against sentence on the ground that his sentence was manifestly excessive.

5.  The Summary of Facts setting out the matters which the Applicant admitted showed that the illegal items set out in Charges 1 to 5 were found by police at his home.

6.  There were 58 counterfeit HK$1,000 banknotes, the subject of Charge 1.

7.  The false instruments, the subject of Charge 2, were 13 forged bank savings passbooks.  They had the covers of genuine savings passbooks issued by the Bank of China to the persons named in the bankbooks, but the inside pages had been tampered with and contained “salary entries” which did not correspond with the Bank’s records.  The Applicant admitted that he had bought the counterfeit banknotes, the USB memory stick which provided the false salary entries, the forged identity cards and the drugs in the mainland.

8.  On Charge 3, there were 38 tablets of “Erimin” which contained 0.03 grammes of ‘Nimetazepam’ which is a dangerous drug, under the Dangerous Drugs Ordinance, Cap. 134. 

9.  The identity card, which was the subject of Charge 4, was a genuine identity card.  The Applicant claimed under caution that this identity card had been picked up by his friend in a discotheque and that he was keeping it temporarily.

10.  There were 2 forged identity cards, which were the subject of Charge 5.  The Applicant admitted that the particulars on those cards had been given by him to a man known as “Dai Wah”, who later provided him with the two cards.  Originally he had intended to sell them for HK$1,000 each, but never did so because they were of poor quality.

11.  The conspiracies in Charges 6 to 11 related to the Applicant’s having assisted persons to apply for loans and producing the forged Bank of China passbooks in support of the loan applications.  The Applicant would advertise in newspapers seeking customers who wanted loans.  He would arrange for a passbook to be suitably altered and, as the customers were usually unemployed, he would take 25% to 30% of any loan which was obtained by the customer.  Without proof of income and employment information which the Applicant provided to his customers, they could not otherwise have obtained the loans.  These offences were committed over a period of just over a year.

12.  The judge obtained a Background Report before sentencing the Applicant.  He was 23 and had a clear record.  He came from a poor family.  He had completed schooling up to F.3.  Thereafter, he completed a one-year technical course in plumbing and pipe-fitting and worked in various jobs of this kind thereafter.  He developed a gambling habit and at one point had lost about HK$200,000.  Having exhausted his savings, he was still indebted to the tune of about HK$100,000 at the time he embarked on these offences.  The Applicant told the Probation Officer that he could earn around $30,000 to $50,000 per month and that he had on average 3 to 5 customers a month leading up to his arrest in February 2007.  He claimed he had cleared his gambling debts over the course of a year.

13.  In regard to his possession of Nimetazepam, the Applicant explained that he had begun taking this some 2 or 3 years beforehand in discotheques to relieve his stress.

Grounds of Appeal

14.  The Applicant’s grounds of appeal can be summarized as follows:

(1) the judge failed to consider properly or sufficiently the repayments made towards the loans;

(2) the starting points and the overall sentence were too high if looked at in the light of the tariffs in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776;

(3) the judge had failed to consider sufficiently the totality principle; and

(4) the judge had failed to give adequate weight to the Applicant’s clear record and the Background Report.

Ground 1

15.  The 1^st ground alleged that the judge failed to give credit to the Applicant for the repayments made to the lending institutions for the loans obtained.  That submission is misconceived because those repayments were not made by the Applicant but by the loan recipients.  The mitigatory benefit of the repayments was available to the recipients who made them, but could not be used to justify a discount on sentence for the initiator of the scheme for obtaining those loans.

Ground 2

16.  The 2^nd ground alleged that the judge had not directed herself properly as to the totality principle; the underlying submission being that she had not considered it adequately, or at all.  Mr Bullett, who appeared for the Applicant, cited a number of cases which he suggested were comparable and from which some assistance could be derived.

17.  Having considered the overall sentence imposed for Charges 1 to 5 we did not find that this ground was substantiated.  The judge did not explain whether and/or how she had considered totality, but given the nature of the sentences which were all ordered to run concurrently, it is clear that she did have totality in mind.

Ground 3

18.  The 3^rd ground alleged that the brevity and inadequacy of the judge’s Reasons for Sentence left a doubt as to the weight given to the Background Report she obtained before sentencing and to the Applicant’s clear record.

19.  Mr Bullett complained that the judge had failed to give credit for the Applicant’s clear record - a factor that at best was neutral and had been recognized in the granting of a full one-third discount for his pleas of guilty.  The clear record of the Applicant was not a significant factor in mitigation and certainly should not have attracted any additional discount.

20.  The only mitigating factor in this case was the Applicant’s pleas of guilty to each of the charges for which he received full credit.

21.  Having considered the nature of these offences and the arguments of counsel on both sides, it is apparent that the judge failed to make a proper analysis of an appropriate level of sentence in respect of each and every offence to which the Applicant pleaded guilty.  However, the argument advanced by Mr Bullett that an overall sentence of 5 years was too heavy, particularly for a first offender, was one with which we were unable to agree.  In our view the overall sentence was not inappropriate.

22.  The offences were many and serious.  The Applicant had been involved in the fraudulent obtaining of loans for at least a year.  He was found in control of a large quantity of high denomination banknotes which, as he admitted, he was introducing steadily into the Hong Kong currency flow.  He was operating a substantial business obtaining loans for persons who, in the ordinary course of events, would never have been considered good credit risks.

23.  To assist his customers, whom he sought actively, to obtain loans, he would arrange false entries in genuine bank passbooks which, accompanied by false letters of reference, were presented to the lending institutions.  From his share of each loan he was making a substantial income.  The Applicant also possessed false identity cards, which he would have sold if they had been of better quality.

24.  The starting points chosen for Charges 1, 2, 3 and 5, were appropriate, but in light of the very serious nature of charges 1 and 2, a substantial part of the sentence on Charge 2, probably in the order of about 12 months, should have been ordered to run consecutively to the sentence on charge 1.

25.  The 3-month starting point leading to a 2-month sentence after plea for Charge 3, was within the accepted sentencing range for simple possession where a custodial sentence was in any event going to be imposed.  If dealt with on its own in the Magistracy a non-custodial sentence would have been likely.  Thus, while ordinarily this sentence should have been consecutive to recognise its separate nature, there was justification for making it concurrent.

26.  As Ms Wong Kam-hing, for the Respondent accepted, the starting point for sentence on Charge 4 was a low one and, on any view, should have been a sentence consecutive at least in part to the other sentences.

27.  For Charge 5, a starting point of 18 months acknowledged the serious nature of the charge; that there was more than one forged identity card; that the Applicant had supplied the particulars to the card producer; and that he intended to sell them.  Once again, a consecutive sentence, at least in part, was to be expected.

28.  The overall sentence of 2 years achieved on Charges 1 to 5 was, therefore, remarkably lenient.  The Applicant, unsurprisingly, did not complain about those sentences.  Mr Bullett directed his criticism towards the sentences on Charges 6 to 11, the conspiracies to defraud.

29.  It was common ground that there was no specific tariff for such offences.  Mr Bullett pointed out that the guidelines in HKSAR v Cheung Mee-kiu [2006] 4 HKLRD 776 in respect of breach of trust offences involving dishonesty set out a sentence of less than 2 years’ imprisonment for amounts under $250,000 (Band 5) and 2 to 3 years for amounts between $250,000 to $1 million (Band 4).  Whilst this was not a breach of trust case, Mr Bullett was anxious to point out that the total funds obtained from the lending institutions amounted to $280,000.  As to this, Mr Bullett criticized the notional starting point taken by the judge, contending that she should have fixed individual starting points according to the losses represented by each charge.  In the result, the judge had reached an overall sentence of 3 years after plea which gave an effective starting point of 4½ years taking the sentence into the 3^rd band of Cheung.

30.  Mr Bullett referred us to a number of cases he described as comparable sentencing cases to show that the judge had adopted too high a starting point but these were of limited value as the facts varied too greatly to be of real assistance.

31.  Whilst it would have been appropriate for the judge to have set a starting point for each offence, we have concluded that given the number and nature of the charges on this indictment, the total sentence of 5 years was neither excessive nor wrong in principle.  We do not, in saying this, seek to encourage the approach to sentence taken by the judge but we are satisfied that, more by luck than good judgment, a proper sentence was ultimately achieved.

32.  Accordingly, this application is dismissed.