THE QUEEN v. CONCESA V. BLANCAFLOR

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JUDGMENT

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Cons, V. -P. delivered the judgment of the Court:

1. This is an application for leave to appeal against a sentence imposed by Judge Blackwell in the Kowloon District Court on six offences of obtaining property by deception.

2. The Applicant, a native of the Philippines, is aged 28. She came to Hong Kong in April of this year being one of a party of 6 Filipinas. The natural inference from the circumstances would be that the party came with the deliberate intent to plunder the shopkeepers of Hong Kong by the use of credit cards to which they were not entitled. It was said on her behalf in the court below that she was persuaded into that scheme only after her arrival in Hong Kong and by a lady to whom, for past favours, she felt under an obligation and who also had paid her fare to Hong Kong for a holiday. The Judge was apparently not impressed by that excuse and we can understand his reaction.

3. The extent of the plunder was in the region of H K $8,000, spread over a period of 3 days and achieved with the assistance of her accomplices in the party. It is reflected in the six charges to which we have just referred, which themselves only deal with an amount of approximately HK$5,000. The case was tried in the District Court. The Applicant pleaded guilty to the charges. Mitigation was put forward on her behalf. The Judge nevertheless took the view that it was a series of premeditated offences committed in the full knowledge that she knew that she was doing wrong. He made allowance for her plea of guilty and imposed sentences to a total of 21 months.

4. In deciding upon the length of sentence the Judge relied on the case of Garthwaite⁽¹⁾, the decision of a single Judge of the High Court, reducing, for similar offences a sentence of three years to two.

5. We have been referred to the more recent case of Ajibola Swaju Oyalowo⁽²⁾ a decision of this Court last year. There two persons had come from abroad with the deliberate intent of defrauding Hong Kong shops by means of credit cards to which they were not entitled. Concurrent sentences of 18 months were reduced to twelve. This Court however was faced in that instance with an earlier decision of this Court which had reduced a sentence for similar offences to as little as 9 months. Li V. P. observed -

"        With great respect we feel that 18 months imprisonment for an offence of this nature is a proper sentence. Having regard to the prevalence of this type of offence 9 months imprisonment is on the low side. However having regard to the judgment of the court of appeal in 1982 and the sentence then imposed we cannot help feeling that the applicants in this case might well feel a sense of justifiable grievance in relation thereto.

 

         For this reason and this reason alone we would allow their applications ... "

6. In coming to the conclusion as to what then was the appropriate sentence no account appears to have been taken of the fact that the case involved multiple offences committed by more than one offender, factors which are well accepted as matters of aggravation.

7. There are in the present case factors personal to the Defendant which have been urged upon us. She has a young child in the Philippines. He will now be about 10 months old. She has apparently already appreciated the consequences of imprisonment, which may also bean more hardly upon her as someone who is not conversant with the local language.

8. The points which Mr. Merry has very properly and pleasantly raised on her behalf have, as must be apparent from the time that we have taken in coming to our conclusion, given us cause for anxious consideration. Nevertheless, taking all the circumstances into account, we are unable to say that the sentences passed by the Judge below were manifestly excessive.

9. Therefore the application for leave to appeal must be dismissed.

(1)    Criminal Appeal No. 566 of 1977

(2)    Criminal Appeal No. 90 of 1985