HKSAR v. LI CHI YAT

CACC 189/2018

[2018] HKCA 887

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 189 OF 2018

(ON APPEAL FROM DCCC NO 1003 OF 2017)

_______________

_______________

____________________

J U D G M E N T

____________________

1.  The applicant applies for leave to appeal his sentence of 2 years and 3 months’ imprisonment imposed on him by Deputy District Court Judge Kathie Cheung, following his conviction on his own plea to an offence of theft of a credit card (Charge 1), an offence of obtaining property by deception by use of the credit card (Charge 2), and two offences of attempting to obtain property by deception by use of the credit card (Charges 3 and 4).

2.  The applicant worked as a dispatcher for a transportation company.  On 10 May 2017, one of the owners of the company left his wallet in a vehicle that the applicant later used to do a delivery job. The applicant admitted that on that day he stole the credit card of the owner which he later used in an attempt to purchase certain items.  He went to Sincere House in Mong Kok that afternoon and attempted to purchase at a technology shop an item in the sum of $10,464 but it was unsuccessful because he was requested to produce his Hong Kong identity card for verification of identity.  He then went to another shop where he successfully used the credit card to purchase a mobile telephone in the sum of $7,917.  It was a result of this transaction that the owner was notified that his credit card had been used, whereupon he immediately informed the bank that the transaction had not been made by him.  The applicant later in the evening went to Fortress and attempted to purchase an item in the sum of $7,288 but this transaction was unsuccessful. 

3.  There was a police investigation and later enquiries were made of the applicant on 11 July 2017 who admitted his wrongdoing to them.  He identified himself on CCTV footages that had been retrieved by the police when the transactions took place.  He explained that after he purchased the mobile telephone he sold it and used the proceeds to buy food and play mahjong.  After the last unsuccessful transaction, he threw away the credit card.

4.  In sentencing the applicant, the judge noted that he was 29 years old, single and previously worked as a driver.  She also noted that the applicant had one previous conviction for the offence of theft for which he was fined $5,000 and ordered to pay compensation in the sum of $1,900 on 13 June 2017.  She disregarded this previous conviction for the purpose of sentencing in the present case.  She noted that the applicant confirmed that he committed the present offences out of greed.  She considered the relevant sentencing authorities in relation to credit card fraud offences, and adopted a starting point of 3 years’ imprisonment for each of Charges 2, 3 and 4 which she reduced by one third for the applicant’s guilty plea to 2 years’ imprisonment.  For Charge 1, she adopted a starting point of 9 months’ imprisonment which she reduced by one third for the applicant’s guilty plea to 6 months’ imprisonment.  She then applied the totality principle and considered that a sentence of 2 years and 3 months’ imprisonment appropriately reflected the culpability of the applicant in the offences he committed.  She ordered that the sentences on Charges 2, 3 and 4 run concurrently, with 3 months from the sentence on Charge 1 to run consecutively to the concurrent sentences on Charges 2, 3 and 4. 

5.  When the applicant was sentenced, he was unrepresented and appeared in person.  He now complains that as a result of not having a legal representative to speak on his behalf he was unable to effectively mitigate, and the sentence in the circumstances was therefore excessive.

6.  He has submitted a lengthy letter to the Court in which he notes that he had been declined legal aid but nevertheless applies for a certificate for legal aid and for leave to appeal his sentence.  He argues that his sentence was too high in comparison with other cases of a similar kind.  He submits that the offence was opportunistic and a momentary lapse of judgment by failing to control his greed when he found the credit card that had been left behind in the vehicle.  He notes in particular that the unauthorised credit card transaction amounted to a little under $8,000 which did not warrant a starting point of 3 years’ imprisonment.  However, it should be noted that there were two failed attempts to use the credit card, involving amounts of about $10,000 and $7,000 respectively. 

7.  He points out that there were three important mitigating factors that he did not submit to the judge.  First, when the police made enquiries about the case, he immediately surrendered himself to them.  He admitted the offence and completely cooperated with the police.  Secondly, there was no premeditation in committing the offence and was purely opportunistic, in that he found the credit card in the vehicle which had been left behind.  He submits that it was a momentary lapse of judgment on his part and a failure to control his greed at that moment.  He stresses that his offence is not the most serious of its kind and the sentence imposed on him was therefore excessive in comparison to other cases.  Thirdly, he highlights that he has a good family background and that because of family and economic pressures, he committed the offence.  He explains that a member of his family is seriously ill and upon discovering the credit card, he wanted to use it to buy gifts for his ailing family member. 

8.  The judge adopted a starting point of 3 years’ imprisonment on each of the offences of obtaining or attempting to obtain by deception property, following a review of relevant authorities, including HKSAR v Tu I Lang, CACC 464/2006, unreported and HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242.  She noted that the usual starting point in a small unsophisticated operation involving only one or a few credit cards was 3 years’ imprisonment or less.  See the discussion of McWalters J (as McWalters JA then was) in Lam See Chung Stephen at paragraphs 35 to 53.  See also HKSAR v Atienza Richard Montenegro, CACC 38/2016, 22 September 2016, unreported. 

9.  Mr Prakash Daryanani, counsel for the respondent, quite properly has raised two matters that may have a bearing on the sentence that was ultimately imposed on the applicant.  First, whether the theft of the credit card is part and parcel of the offence of obtaining or attempting to obtain property by deception, and whether the sentence on the theft offence should be concurrent or consecutive or partially consecutive to the sentence or sentences on the obtaining or attempting to obtain property by deception.  Secondly, on the issue of the potential loss in credit card fraud cases which in the particular circumstances of the case may not be substantial.  I think it is reasonably arguable that the starting point of 3 years’ imprisonment was excessive in light of the circumstances of this case and the amounts of transactions involved, as well as the actual loss of $7,917. 

10.  It follows from what I have said that I grant the applicant leave to appeal against his sentence as well as legal aid in the conduct of his appeal pursuant to Rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221D.