HKSAR v. DAI XIANGFEI

CACC 169/2018

[2019] HKCA 29

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 169 OF 2018

(ON APPEAL FROM DCCC NO 966 OF 2017)

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J U D G M E N T

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1.  Following her pleas of guilty before HH Judge Lo (the judge) on 10 May 2018, the applicant was convicted of two charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charges 1 and 4), and two charges of obtaining property by deception, contrary to section 17(1) of the same Ordinance. On 14 June 2018, she was sentenced to an overall term of 2½ years’ (or 30 months’) imprisonment.

2.  Having filed a Notice of application for leave to appeal (Form XI) on 21 June 2018, the applicant now seeks leave to appeal against her sentence.

The facts

3.  On 22 August 2017 at about 12:42 pm, the applicant picked up the credit card of a customer, PW1, which had been left behind at the counter of the “Gucci” stall at “T Galleria” shopping mall in Canton Road, Tsim Sha Tsui, Kowloon following a transaction (Charge 1).

4.  Ten minutes later, the applicant used PW1’s credit card to obtain a bottle of lotion worth of HK$1,000 from the “Lancôme” stall in the same shopping mall (Charge 2).  Shortly thereafter, the applicant again used the same credit card to obtain a box of perfume worth HK$730 from the “Fragrances” stall, also in the same shopping mall (Charge 3).

5.  A subsequent examination of the closed circuit television (“CCTV”) in the shopping mall further revealed that the applicant had stolen a red wallet from the same “Gucci” stall shortly before picking up PW1’s credit card (Charge 4).  She subsequently left the shopping mall without making payment for any of the items.

6.  Having been notified by text message of the credit card purchases from the card issuing bank, PW1 realised that she had lost her credit card and accordingly made a report.  As a result, police officers went to the shopping mall to investigate the matter, in the course of which they viewed the CCTV footage.  At 2:57 pm on the same day, officers intercepted the applicant in the Tsim Sha Tsui area near the shopping mall in possession of the lotion, perfume and red wallet.  Two receipts recording the details of the transactions made with PW1’s credit card were also seized from the applicant.

Mitigation

7.  The applicant was 25 years of age at the time of her sentence and of good character.  She had come from the mainland to Hong Kong as a visitor on 22 August 2017 and had been permitted to remain until 29 August 2017.  She was a student of what was translated as “The Shanghai Academy for Movie Arts”, having also worked as a trainee at Disneyland in Shanghai in order to subsidise her studies.  She had come to Hong Kong with her mother to celebrate the latter’s birthday.  Along with a number of mitigation letters written by various people who knew the applicant, it was submitted by counsel on her behalf that the applicant had acted out of character and in a moment of greed.  The court was urged not to treat her as someone who had come to Hong Kong in order to commit crime.

8.  In the course of her mitigation, counsel acknowledged that the applicant had not pleaded guilty at the first available opportunity. The applicant had first indicated her intended plea of guilty in the District Court on 16 November 2017 but, on 6 March 2018, when legally represented, she reversed that indication in respect of Charges 1, 2 and 3 only.  However, she later wrote in person to the court saying that she wished to plead guilty to all charges, and complaining that her previous solicitors had not followed her instructions.  On 30 April 2018, the applicant’s new firm of solicitors wrote to the court confirming that she would be pleading guilty and her agreement of the Summary of Facts.

9.  During mitigation, the complaints against her former solicitors were specifically withdrawn by the applicant’s counsel[1].

10.  Although the case was set down for trial on 10 May 2018 on the basis of not guilty pleas in respect of Charges 1, 2 and 3, it was submitted by her counsel that the applicant did ultimately indicate that she would be pleading guilty to all charges before the trial fixed for 10 May 2018; a situation that was said to be comparable to a defendant indicating a plea of guilty at the pre‑trial review stage between the first mention date and the date set down for trial.  Accordingly, counsel advocated that the applicant should receive a 25% discount in respect of her pleas to Charges 1, 2 and 3.

Reasons for sentence

11.  The judge noted that the applicant had all along been prepared to plead guilty to Charge 4, but had vacillated in relation to Charges 1, 2 and 3.  Accordingly, the judge gave a full one‑third discount in respect of her plea of guilty to Charge 4; but a reduced discount of 25% in respect of her pleas to Charges 1, 2 and 3.

12.  The judge considered Charge 4 to be a standard shoplifting case, involving an item worth HK$4,500.  A starting point of 9 months’ imprisonment was warranted, resulting in a sentence after a full one‑third discount of 6 months’ imprisonment.

13.  Charge 1 involved the theft of a credit card by finding, for which a starting point of 8 months’ imprisonment was deemed appropriate. Applying a 25% discount for late plea produced a sentence of 6 months’ imprisonment.

14.  In respect of Charges 2 and 3, the judge cited the decision in HKSAR v Yang Xingyun[2], where the Court held that a starting point of 3 years’ imprisonment was appropriate in simple cases of credit card fraud.  The judge in fact adopted a starting point of 2 years and 8 months’ (or 32 months’) imprisonment on both charges, discounting it by 25% for her pleas to 2 years’ (or 24 months’) imprisonment.

15.  In considering the question of totality, the judge noted that Charges 2 and 3 had been committed within a very short time of each other.  Since the charges were effectively the same, with Charge 3 not adding anything to the culpability of Charge 2, the sentences on each charge were ordered to run concurrently.  However, she ordered 3 months of the sentence on Charge 1 to run consecutively to the sentences on Charges 2 and 3, resulting in a sentence of 27 months’ imprisonment as between the three charges.

16.  Given the Court’s advice in HKSAR v Ngai Yiu Ching[3], the judge was of the view that the commission of Charge 4 did add to the culpability of the applicant.  However, bearing in mind the principle of totality, an overall sentence of 2½ years’ (or 30 months’) imprisonment was appropriate to reflect the applicant’s culpability in respect of all four offences. Accordingly, the judge ordered 3 months of the sentence on Charge 4 to run consecutively to the sentences on Charges 1, 2 and 3 (namely, 27 months’ imprisonment), making an overall term of 2½ years’ (or 30 months’) imprisonment in respect of all four charges.

Grounds of appeal

17.  In a letter written on 3 September and filed with the court on 13 September 2018, the applicant claimed that she inadvertently mistook someone else’s credit card for her mother’s.  She then used the credit card to purchase two items by keying in the correct 6‑digit passcode.

18.  Notwithstanding this explanation, the applicant says she is truly remorseful for her “reckless act and carelessness”.  She wishes to have her sentence reduced so that she can return to the mainland before 2019 in order to continue her studies and be reunited with her family.  In oral submissions before me this morning, the applicant has limited her application to a request for a full one‑third discount to be granted in respect of the starting points on Charges 1, 2 and 3.

The respondent’s reply

19.  Ms Winnie Mok, on behalf of the respondent, submits that the starting points for each charge were entirely appropriate. The starting points of 2 years and 8 months’ imprisonment adopted by the judge in respect of Charges 2 and 3 were in line with sentencing guidelines for simple cases of credit card fraud where a stolen genuine credit card was used to obtain property.  Indeed, the starting point for these two offences together could have been as much as 3 years’ imprisonment.

20.  Furthermore, the discount granted to the applicant for her guilty pleas was in line with the principles laid down in HKSAR v Ngo Van Nam[4], where the Court of Appeal held that a defendant who indicated a plea of guilty between the fixing of trial dates at Plea Day in the District Court and the first day of trial was to be given a discount for plea of between 20% and 25%.  The judge was, therefore, acting entirely within her discretion in giving a discount of 25% in respect of Charges 1, 2 and 3, but a full one‑third discount in respect of Charge 4.

21.  As for totality, the respondent submitted that the overall sentence of 2½ years’ (or 30 months’ imprisonment) could not be considered manifestly excessive and/or wrong in principle and was appropriate in the context of multiple offences.

Consideration

22.  Although the applicant’s finding of the credit card may have been opportunistic, the courts have consistently taken a serious view of credit card fraud, whether by the use of forged credit cards or stolen credit cards: see HKSAR v Lee See Chung Stephen[5].  Concurrent starting points of 3 years’ imprisonment could not be faulted in respect of Charges 2 and 3, which represented “a small unsophisticated operation, involving only one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation”[6].  Yet the judge in her discretion adopted starting points of 2 years and 8 months’ imprisonment for both charges.  The applicant cannot realistically complain about such starting points.

23.  Nor can the applicant complain about the starting points adopted in respect of Charges 1 and 4, which were separate offences of theft; in particular Charge 4, which had nothing to do with credit card fraud.  The claim to an opportunistic theft of the credit card and its subsequent use by someone who might not otherwise have stolen anything is somewhat undermined by the fact that the applicant had already embarked on her spree of dishonesty by shoplifting the red wallet before she came across PW1’s credit card.

24.  Furthermore, no issue can be taken with the judge’s adoption of a lower discount in respect of those offences for which the applicant had indicated not guilty pleas, resulting in the fixing of trial dates; albeit she was later to change her mind before trial.  Such a discount was in accordance with the Court’s directions in Ngo Van Nam, as defence counsel in the court below had indeed conceded[7].

25.  Ultimately, the Court on appeal will look at the totality of sentence, however it may have been achieved by way of individual sentences, and ask itself whether the overall sentence was commensurate with the criminality displayed by the applicant, bearing in mind the circumstances of the commission of the offences and any attending aggravating or mitigating factors.  I am not persuaded that there are any reasonably arguable grounds of appeal that the individual sentences passed were inappropriate, or that the overall sentence of 2½ years’ (or 30 months’) imprisonment was in the circumstances manifestly excessive or wrong in principle.

26.  The application for leave to appeal must, therefore, be refused.  The applicant is duly advised that she has the right to renew her application for leave to appeal against sentence to the Court of Appeal.  However, she is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending her appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.