HKSAR v. CHAN YIP CHI

CACC 153/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 153 OF 2001

(ON APPEAL FROM DCCC 1181 OF 2000)

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J U D G M E N T

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Hon. Lugar-Mawson, J (giving the judgment of the Court):

1. On 17 April 2001, Chan Yip Chi, the Appellant, who was one of three defendants named on the District Court charge sheet, pleaded guilty before Deputy Judge McNair in the District Court to:

1. The 1st charge of Attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance, Cap. 210, in trying to purchase a video camera recorder valued at $10,990 by using a counterfeit credit card. This is a charge that he faced alone.

2. The 3rd charge, of Attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance, Cap. 210, in trying to purchase a watch valued at $6,224 by using the same counterfeit credit card. This is a charge that he faced jointly with the other two defendants.

3. The 6th charge, that of Possessing false instruments, contrary to section 75(1) of the Crimes Ordinance, Cap. 200. These were three counterfeit credit cards. This is a charge that he faced alone.

2. He was sentenced to 12 months' imprisonment on the 1st charge, 12 months' imprisonment on the 3rd charge to be served consecutively to the sentence on the 1st charge, and 24 months' imprisonment on the 6th charge, 12 months of which was to be served consecutively to the sentences on the 1st and 3rd charges; making his sentences a total of 36 months' imprisonment.

3. The Appellant, who was the 3rd Defendant at trial, now appeals against those sentences, leave to do so having been granted by Keith JA on 17 August 2001.

4. The 2nd Defendant absconded before trial. The 1st Defendant, a man named Lui Kim Hung, who faced four charges (the 2nd on the charge sheet of Obtaining property by deception, the joint 3rd charge of Attempting to obtain property by deception, the 4th of Possession of false instruments and the 5th of Possession of a forged identity card) was also sentenced to a total of 36 months' imprisonment.

5. The Judge did not indicate the starting point he adopted in respect of the sentences he passed on the Appellant, although by reference to the sentence passed on the 1st Defendant, it would appear that he allowed a 50 per cent reduction from the sentences he would otherwise have passed to reflect the Appellant's pleas of guilty; the fact that both the Appellant and the 1st Defendant had offered to give evidence against the 2nd Defendant and the fact that the case against the 2nd Defendant was very much dependent on the evidence of the Appellant and the 1st Defendant. It can thus be taken, as a matter of simple arithmetic, that the Judge adopted a total starting point of 6 years' imprisonment before passing the individualised sentences in respect of the three charges the Appellant faced.

6. The Appellant has been unable to fulfil his offer to give evidence against the 2nd Defendant, as he remains at large.

7. The facts may be simply stated: the three defendants, on 17 October 2000, used forged credit cards in a number of shops to purchase or attempt to purchase high value items, which no doubt they hoped to easily 'fence'. Six forged credit cards and a forged Hong Kong identity card were found in the 1st Defendant's possession on his arrest, and three forged credit cards were found in the Appellant's possession on his arrest. In the only effective obtaining, that in the 2nd charge which the Appellant did not face, the value of the property, a video camera, was $12,990.

8. Mr Kumar Ramanathan who appears for the Appellant, though he was not his Counsel at trial, argues three grounds of appeal against sentence, namely:

1. That having regard to sentences passed in previous cases for similar offences, the sentences imposed on the Appellant were manifestly excessive, on the facts of the present case.

2. That having regard to the fact that the offences were all committed on the same day and were part and parcel of one criminal enterprise, the sentences should, in principle, have all been concurrent.

3. And that as the 1st Defendant faced four charges and yet was sentenced to the same overall term of imprisonment as the Appellant, the Appellant harbours a genuine sense of grievance in that his overall culpability was equated with that of the 1st Defendant, despite the fact that he faced an additional charge of Possession of a forged identity card.

9. On the issue of severity, offences involving forged credit cards are rightly considered to be serious ones.

10. In Attorney General v Chan Pui Sang and Another [1994] 1 HKCLR 211, which was an application for review of sentence, where the Respondent had pleaded guilty to two counts, one for possession of two forged credit cards, the other for possession of five forged credit cards, the Court of Appeal held that the starting point for the two counts should be 11/2 years and 4 years' imprisonment respectively.

11. Silke VP, giving the judgment of the Court, said at page 214, at letter 5:

"This Court has emphasised on more than one occasion the serious nature of this type of offence. As was said by Macdougall JA in R v Wong Fu Keung, Criminal Appeal No. 5 of 1991 (unreported) at page 5:

'It is a notorious fact that the illegal use of credit cards has become widespread. Those who are engaged in this type of activity can expect to be dealt with severely by the Courts.'

As my brother Litton JA said in R v Kwai Ying Ho, Criminal Appeal No. 527 of 1992 (unreported), at page 5:

'Credit card frauds have in recent years been an insidious poison in the community. It affects a large number of citizens. It erodes the credit card system and damages Hong Kong's standing in the international community.'

While these later words were applied to charges of conspiracy, we would, with respect, adopt them in this Court in relation to the generality of credit card frauds."

12. In R v Chan Sui To and Another [1996] 2 HKCLR 128, a case that was referred to by the Judge in his reasons for sentence, Sir T L Yang CJ, at page 134, line A, said:

"We would therefore suggest that an accused who plays an active, but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of five to six years after trial. Sentences may be adjusted upwards or downwards according to circumstances."

13. In HKSAR v Poon Cho Shu, CACC 55 of 2000 (unreported), where the applicant used three counterfeit credit cards to purchase goods worth around $11,000 and was in possession of a fourth counterfeit credit card and an identity card in the name of another person, a starting point of 3 years was taken by the Court of Appeal for the five charges involving counterfeit credit cards, and 1 year as the starting point for the single charge of possession of the other's identity card, making a total of 2 years 8 months' imprisonment, after allowing for a one-third discount for plea.

14. In HKSAR v Chan Yuk Kwan [2001] HKEC 769, where the applicant forged application forms for credit cards and, by so doing, obtained six cards from a number of banks and then used them to obtain various items worth $148,000 in total, an overall starting point of 4 years was taken by the Court of Appeal.

15. In HKSAR v Chow Fu Keung [2001] HKC 1029, where the applicant used false documents to obtain credit cards over a time span of about four months and obtained items worth around $138,500, 5 years was taken as the starting point by the Court of Appeal.

16. These cases suggest that the overall starting point of 6 years' imprisonment taken by the Judge in this case may, in itself, be regarded as being too high, given the fact that the Appellant was not charged with the one effective obtaining offence.

17. However, the Appellant was given a 50 per cent discount for his plea and a promise to give evidence against the 2nd Defendant. A one-third discount for the guilty plea is well within accepted sentencing practice. However, such a generous further discount, effectively one of an additional 20 per cent, should not have been given merely to reflect the Appellant's promise to give evidence against the 2nd Defendant. A defendant's willingness to give evidence against his co-accused is not a mitigating factor. It may never be actioned and the defendant who makes it may resile from his offer to do so. As Keith J said in R v Wong Kam Chiu [1993] 2 HKC 700, at 704, lines A to B:

"Actions speak louder than words. It is therefore inappropriate to discount a defendant's sentence to take into account a promise which he may choose not to fulfill. In those circumstances, the appropriate course is for the sentencing court either to defer sentence until the Defendant has had the opportunity to live up to his promise, or to sentence him there and then, ignoring the promise, but leaving it to the appellate court or to the Governor-in-Council to give the appropriate discount once the defendant has complied with his promise."

18. This unjustified discount effectively takes away any benefit that the Appellant may have expected by reason of the starting point being too high. If the 2nd Defendant is located and the Appellant performs his promise to give evidence against him, it is open to him to petition the Executive for a reduction in his sentence.

19. On the issue as to whether or not the sentences should have all been concurrent, while it is true that all were committed on the same day, each was passed in respect of a separate and distinct offence. The two attempted obtainings by deception were directed at different victims and the possession offence was directed at future offences, which no doubt would have been committed had the Appellant not been arrested. Perhaps more importantly, the Appellant fell to be sentenced for his overall criminality and, provided that the overall sentences are correct, it matters little whether they were arrived at by way of concurrent or consecutive sentences. We are satisfied that an overall sentence of 36 months' imprisonment for the Appellant's three offences, although high, is the correct one.

20. On the issue of disparity in sentence, in one sense there is no disparity. Both the Appellant and the 1st Defendant received the same overall sentences, a total of 36 months' imprisonment. The complaint is that the 1st Defendant did not receive a higher sentence to reflect his possession of the forged identity card.

21. A true disparity between sentences passed by the same judge, on the same occasion, only arises when it can be shown that the judge has not properly apportioned blame between the accused in respect of their roles in relation to the same or similar offences. If the sentence the Appellant received is otherwise appropriate and the judge laboured under no misapprehension as to the roles played by the various accused, the sentences should stand.

22. If the Judge fell into error in sentencing the two defendants in this case, it was not that, in respect of the offences relating to the use and possession of forged credit cards, he failed to differentiate between the respective culpability of the two defendants. In fact, without expressly saying so, he appears to have regarded them as both bearing the same degree of culpability; which, given the similarity of the charges they faced, must be correct. His error is that he failed to order that the sentence for the offence of possessing the forged identity card which was unique to the 1st Defendant, be served consecutively to his sentences for the offences relating to the use and possession of the forged credit cards. The 1st Defendant may, no doubt, count himself lucky because of that. But that cannot avail the Appellant because he, in our view, received the appropriate sentences for his offences.

23. The Appellant's appeal against his sentences is dismissed.