HKSAR v. KITA YASUSHI AND ANOTHER

CACC 470/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 470 OF 2006

(ON APPEAL FROM DCCC NO. 888 of 2006)

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J U D G M E N T

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Stuart-Moore,Ag CJHC (giving the judgment of the Court):

1.  On 7 November 2006, the applicants each pleaded guilty in the District Court to three closely connected offences and were both sentenced by Deputy District Judge S M Sham to a total term of 32 months’ imprisonment against which they now seek leave to appeal.

2.  The facts which were agreed in the court below revealed that, on 25 July 2006, D1 and D2 went into a shop which sold watches.  D1 selected a Rolex watch valued at $29,800 and tendered a false credit card in the name of Kiyosh Okubo in payment.  The transaction was successfully accomplished.  However, D2 then wanted to buy a Rolex.  The watch he chose was priced at $30,500 and, in payment, he presented a false credit card bearing the name Toru Tai.  This transaction was not approved.  He was asked to show his passport and he then produced a forged passport in the same name as the false credit card.  D1, who had remained in the shop, also produced a forged passport which matched the name on the false credit card he had used earlier.  The shop staff were unconvinced and police were called.

3.  When police searched D1’s wallet, three additional false credit cards were found in the name Kiyosh Okubo.  In the same way, D2 was found with three additional false credit cards in the name of Toru Tai.  Each applicant was also carrying with him his genuine passport at the time of arrest.

4.  When interviewed, D1 admitted he had paid ¥100,000 to someone in Korea who had provided him with the four false credit cards and the false passport. His intention was to resell the goods he obtained.  He denied being attached to any syndicate.

5.  D2 also admitted paying ¥100,000 to a man in Korea who had given him the four false credit cards and the false passport.  He did this because, as the Admitted Facts stated in a summary of his admissions to the police: “he wanted money and the other side agreed to pay him 5% of the price of the watch”.  He, like D1, agreed that he was intending to resell the goods he obtained but denied being a part of any syndicate.

6.  The judge was told in mitigation that the applicants had not previously been convicted and had committed the offences because of their indebtedness.  D1 was said to owe about ¥15 million (approximately HK$1 million) while D2 allegedly owed about ¥5 million.  It was said that it was difficult to become bankrupt in Japan and, as a result, the applicants’ creditors were chasing them for repayment of their debts.  In July 2006, they met and, so it was said, decided to have a short break in Seoul.  On their way back from Korea to Tokyo, they were said to have met a stranger at the airport in Seoul who told them how they could make money from false credit cards.  Having bought the credit cards and passports from him, they came to Hong Kong to commit the offences.

7.  The charges arising from these facts against D1 were (1) obtaining property (the Rolex watch) by deception, (2) using a false instrument (a forged Japanese passport) and (3) possession of false instruments (3 false credit cards and the false passport).

8.  In D2’s case the charges were (4) using a false instrument (the false credit card used in the attempt to purchase a Rolex watch), (5) using a false passport and (6) possession of false instruments (3 false credit cards and one false passport).

9.  In his Reasons for Sentence, the judge, having outlined the allegations and the salient points in the mitigation, described this as a case with an “international dimension”, pointing to the fact that the applicants were Japanese nationals who had obtained the forged passports and credit cards in Korea before coming to Hong Kong to commit the offences.  The judge disbelieved the accounts given by the applicants that they were merely acting on their own outside a syndicate.  In D2’s case, the judge said that he had admitted being promised “5% of the price of the watch” and in both cases they had chosen to go to Hong Kong instead of returning to Japan with all the expense that this involved at a time when they were supposedly destitute.  The judge also found that the credit cards were almost indistinguishable from the genuine articles and observed that these were obtained in Korea.

10.  The judge then adopted a starting point of 4 years’ imprisonment on each charge.  This was then reduced to 32 months to reflect the guilty pleas.  D1 and D2 were sentenced, therefore, to 32 months on each charge they faced, these sentences to be served concurrently.

11.  Mr Tracy, on the applicants’ behalf, in clearly expressed written submissions, argued that the judge had been wrong in principle to take a global approach when individual starting points ought to have been taken for these offences.  In particular, he contended that the judge had been wrong to sentence D1 on charges 1 and 3 and D2 on charges 4 and 6 to a sentence of 4 years’ imprisonment when this was in part founded on “speculation not justified by the admitted facts that each applicant was part of an international syndicate”.  He submitted that a 3-year sentence would have been appropriate and that the sentences as they stood were manifestly excessive.

12.  On the remaining charges (2 and 5), where forged passports were used to support the false credit card produced by D2, Mr Tracy submitted that a proper starting point, based upon previous authorities, would have been 12 to 18 months, with a substantial part of the term imposed made concurrent to the other sentences.  He suggested, finally, that a further discount should have been given for the applicants’ previous good character.

13.  We can dispose of the last point straightaway.  We have on many previous occasions stated that a clear record is a factor which is generally to be regarded as neutral (HKSAR v Wen Zelang [2006] 4 HKLRD 460 at 465) unless there is some evidence of positive good character such as may occur where there has been voluntary service within in the community (HKSAR v Leung Shuk-man [2002] 3 HKC 424 at 427-428).  The discount of one-third is given to those who plead guilty.  This is intended to achieve equality amongst those who have to be punished by means of a custodial sentence for their crimes.  There may be adjustments, either upwards or downwards, to reflect factors in aggravation or in mitigation but these will need to be specified to justify a departure from the usual practice.

14.  Mr Richard Ma, on behalf of the respondent, in his helpful written submissions accepted in regard to the use of the false passports to facilitate the credit card offence committed by D2 that the usual sentencing range will be 12 to 18 months’ imprisonment.  In HKSAR v Zhou Jianguo and Anor, CACC 480/2005, which Mr Tracy had included amongst his authorities, this court had ordered, in circumstances which were not unlike those in the instant case, that 6 months of the 12-month sentence for the passport offence after plea was to be served consecutively to the other sentences imposed for credit card offences.  We are in agreement that the sentences on charges 2 and 5 were manifestly excessive and, on this ground, leave must be given.

15.  The question which remains to be decided is whether a 4-year starting point for the remaining offences was appropriate.  We have been provided with a large number of decisions in other cases of a similar kind from which we have been invited to draw comparisons.  A consistent feature in all such cases has been the seriousness with which this court has regarded them.

16.  In the instant case, whether or not an organised syndicate from outside Hong Kong was involved, we are satisfied that there was a sufficient international element to have provided justification on the part of the judge for regarding this as an aggravating feature.  In all the circumstances, we have no doubt that the judge was looking at the overall criminality involved when he took a starting point of 4 years’ imprisonment for all the offences.  The mistake which, with respect, he made was to impose much too high a sentence on charges 2 and 5 when these are looked at individually.  It does not, however, follow that the error has led to a sentence which, in its overall effect, was necessarily wrong.  Indeed, we are satisfied that each applicant’s sentence was not inappropriate.

17.  Accordingly, we shall, as we have indicated already, grant leave.  Treating the hearing as the appeal, we propose to reduce the starting point taken by the judge on charges 1 and 3 for D1 and 4 and 6 for D2 to 3½ years’ imprisonment and to reduce the starting point on charges 2 and 5 for D1 and D2, respectively, to 18 months’ imprisonment.  Giving the usual discount for the guilty pleas which were entered to all the charges, the sentences for D1 are reduced to 28 months on charges 1 and 3, which will be served concurrently.  Similarly, for D2, his sentences on charges 4 and 6 will be reduced to 28 months on each charge to be served concurrently.  The sentences on charges 2 and 5 will be reduced to 12 months’ imprisonment of which 4 months will be served consecutively in the case of each applicant respectively.  This will have the effect that for D1 and D2 their sentences will remain at 32 months.