R. v. WONG YUET NGOR

IN THE COURT OF APPEAL

1996, No. 417
(Criminal)

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R E A S O N S

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Saied, J.:

1. The applicant, a woman aged 48 and of clear record, was convicted in the District Court on her own pleas of guilty of one count of attempting to obtain property by deception (count 2) contrary to section 17(1) of the Theft Ordinance and section 101B of the Criminal Procedure Ordinance and of four counts of obtaining property by deception (counts 3, 6, 9 and 10) contrary to section 17(1) of the Theft Ordinance.

2. The trial judge, taking a starting point of six years and discounting it on account of her pleas of guilty, her clear record and background as stated in the antecedent statement, and the fact that the offences were committed because of the "influence" of some loansharks to whom she owed a considerable sum of money, sentenced her on each of those counts to 2 years' imprisonment, and made the sentence on count 2 consecutive to the concurrent sentence on the remaining four counts, thus making a total sentence of four years'imprisonment.

3. The applicant sought leave to appeal against that sentence and on 31 January 1997 we granted her leave to appeal and treating the application as hearing of the appeal, allowed the appeal discharging the sentence of four years and substituting therefor a sentence of 2½ instead. We now give our reasons.

4. The applicant complained that the starting point of 6 years was manifestly excessive and that the trial judge had misunderstood and/or misapplied the case of Attorney General v Chan Yet Wai & 2 others, Application for Review No. 14 of 1993, which he followed, in equating her criminality as being "quite similar" to that of the first respondent in that case, and taking the same starting point of six years.

5. The applicant had used credit cards in all these five instances over a period of three days in January 1996 falsely representing she was the owner and obtaining goods valued at $21,373 while the attempted purchase was of $7,000.

6. The applicant's criminality had to be judged on the basis of her own conduct and actions. No two cases are alike, more so such cases of deception where the scope for the facts and as such the culpability to vary is so vast. It was submitted by Mr. Poll for the applicant and we agree that the case from which the trial judge took his starting point is easily distinguishable first in the number of offences to which the first respondent had pleaded guilty, namely, four charges of obtaining property by deception, one of using a false instrument, one of conspiracy to defraud, one charge of possession of a false instrument and one of illegal possession of an identity case, making in all eight counts; secondly, the value of the various items of jewellery which the first respondent in that case had dishonestly obtained by falsely representing that he was authorised to use the credit cards amounted to $122,000 and thirdly, the conspiracy to defraud charge which was common to all three respondents related to their conspiracy to defraud merchants, banks and the account holder of a Visa card by presenting that card to obtain a variety of goods and they carried out their conspiracy into effect by engaging in a buying spree within a period of several hours on the same day at various shops. It is manifest that on facts the criminality of the persons involved in that case was significantly greater than that of the applicant in the present case. Learned Counsel submitted that considering the applicant's role , which he described as minor, her sentence should have been correspondingly lesser. He said that the trial judge did not have the benefit of the judgment in The Queen v Chan Sui To and Wong Siu Mei Criminal Appeal No. 115 of 1996 which was delivered on 22nd August 1996, after the applicant had been sentenced, where the Court, while appreciating "the different facts and the varying degrees of culpability" in such cases which made it impossible to formulate a set of principles of sentencing from some previous authorities which are cited therein, suggested a "criterion" for the guidance of the courts. Since that decision was not available to the trial judge at the time he dealt with this applicant we do not have to consider the propriety of the sentence in the light of the suggested criterion.

7. Learned Crown Counsel does not dispute the fact that the applicant's criminality was not as serious as that of the first respondent in Attorney General and Chan Yet Wai & 2 Others (supra) but he submitted that the applicant as a "foot soldier" played a role which required to be dealt with in a way that avoided too great a disparity in sentence between her and the main operator or organiser.

8. While we agree that the trial judge was wrong in equating the applicant's culpability in the manner that he did, we are of the opinion that the applicant was not a simple hanger-on but was an active participant in the entire incident as her shopping spree indicated. From the admissions she made it is quite clear that she knew that the entire operation was fraudulent and yet lent herself as a willing participant to the extent that in the end she would receive half of the amount at which the goods obtained through deception were disposed of. The trial judge very properly said that such offences are rife and that the courts had made it plain that those who indulge in them must expect heavy sentences.

9. We were of the view that in the circumstances of this case where there is a multiplicity of the same offence a starting point of four years was appropriate and which, after discount for the pleas of guilty and clear record, would be reduced to concurrent terms of two and a half years imprisonment on each of the five counts.