HKSAR v. LAM PUI TAK

HCMA 655/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NOS. 655 OF 2001

(ON APPEAL FROM NKCC 4046/2001)

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J U D G M E N T

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1. The Appellant appeals against her sentence of 8 months' imprisonment, which was imposed in respect of each of five offences; one of Forgery and four of Obtaining Property by Deception. All these related to a stolen credit card.

2. The Appellant pleaded guilty to all five offences before the Magistrate and was sentenced to an immediate term of 8 months' imprisonment, the Magistrate having taken a starting point of 12 months for each offence, having given her full credit for her plea and having considered the mitigating factors.

3. The facts of the case were that the Appellant was living with a girlfriend, and, according to the Appellant, their relationship turned sour, so, as a means of revenge for various affronts to her comfort and convenience, she took the credit card which belonged to her girlfriend from the mail, activated it by contacting the credit card company, and then later used it to make purchases on four separate occasions.

4. Before the matter came fully to light, the girlfriend's credit card showed strange transactions on the credit bill and, at a certain stage, the Appellant confessed to having stolen the credit card. She wrote a confession letter confirming that fact, then voluntarily surrendered to the police and admitted the offences under caution.

5. The Magistrate, in considering sentence, took the view that offences relating to the use of credit cards were very common, and that even a first-time offender had to be sentenced to an immediate sentence of imprisonment for the purpose of deterrence. He noted that the Appellant did, in fact, have a previous record, which is now a spent conviction, and noted that that was an offence of dishonesty as well.

6. Today, it has been urged on the court that there were strong mitigating factors in relation to this case which qualified as peculiar and exceptional circumstances. These were the voluntary oral and written confessions; the fact that restitution was made before criminal proceedings began; the surrender to and co-operation with the police and the pleas of guilty which were maintained in the Magistrates Court. It was also suggested, as a lesser factor, that the amount of money involved was small and that the victim had asked the court for leniency on behalf of the Appellant. It is suggested that these factors showed the Appellant's early and genuine remorse and that she had faced up to her responsibilities at an early stage. It is also submitted, though without much conviction, that the offences were not for financial gain, but simply for revenge on the victim.

7. There was no suggestion that the Appellant was heavily involved in credit card fraud, or that she had in her possession additional credit cards, or that she was working as a member of any syndicate.

8. The Appellant is apparently in gainful employment and has been working for the same company since 1997. A letter was produced setting out the fact that she has, since the conviction, been promoted to production officer from production assistant, and that the employer knows about the offences and is prepared to continue taking her into employment.

9. The Appellant has also had the experience of having had 12 days in custody prior to her being granted bail. It has been submitted that given the background, and what are referred to as the peculiar circumstances of the case, the Magistrate could have dealt with the Appellant by way of another sentencing option, such as a Community Service Order, or even a suspended sentence.

10. However, having considered the matter, I cannot see that the particular circumstances relied on are so compelling, or exceptional, that the Magistrate should not have sentenced her to an immediate sentence of imprisonment, or that the sentence is manifestly excessive. For that reason I uphold the sentence passed by the Magistrate and dismiss this appeal.