HKSAR v. YIM WAI LING WILLIAM

CACC 35/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 35 OF 2004

(ON APPEAL FROM DCCC NO. 1068 AND 1248 OF 2003)

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J U D G M E N T

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Hon Woo VP (handing down the judgment of the Court):

Background

1. On 20 January 2004, the applicant was convicted by Judge Carlson in the District Court on his own plea of three charges of attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200 (Charges 1, 2 and 3), one charge of possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177 (Charge 4), and one charge of possession of a false instrument, contrary to section 75(1) of the Crimes Ordinance (Charge 5).

2. The judge adopted a starting point of 30 months' imprisonment on each of the first three charges, a starting point of 18 months' imprisonment on Charge 4, and a starting point of 18 months' imprisonment on Charge 5 for the purpose of sentencing. He passed the following sentences on the applicant, namely,

(1) 20 months concurrent on Charges 1 to 3.

(2) 12 months on Charge 4, consecutive to all other sentences, and

(3) 12 months on Charge 5, with 6 months consecutive to all other sentences.

3. The overall sentence came to 38 months' imprisonment. The applicant now seeks leave to appeal against sentence.

Facts

4. The offences under Charges 1 to 4 all occurred on 18 August 2003 in the Jusco Department Stores in Tuen Mun Town Plaza. The applicant attempted to pay for a notebook computer with a Manhattan Visa card ("Card 1") in the name of Ting Yuk-kee (Charge 1). When the cashier failed to get approval of Card 1 from the card centre, the applicant passed to her another credit card, a DBS Kwong On Bank Visa card, also in the name of Ting Yuk-kee ("Card 2") (Charge 2). Card 2 was also rejected. The applicant then asked his wife to pay for the computer, and the transaction was completed.

5. Shortly afterwards, the applicant attempted to pay another cashier for a digital camera and an electricity charger with Card 1 (Charge 3). When approval was not obtained, the applicant aborted the purchase.

6. The second cashier alerted the store detectives who intercepted the applicant. The police came to the store and arrested the applicant. A Hong Kong identity card in the name of Ting Yuk-kee was found by the police in the applicant's wallet (Charge 4). The identity card was a genuine one, but had been reported lost by the holder in early 2003.

7. On 18 September 2003, the applicant was granted court bail while facing Charges 1 to 4.

8. On 16 October 2003, in Central during a stop and search operation, the police found in the applicant's trousers pocket an American International Group Master Card in his own name (Charge 5).

9. Card 1, Card 2 and the credit card under Charge 5 were counterfeit credit cards.

Grounds of appeal

10. Two grounds of appeal are raised. The first ground is that the overall sentence of 3 years and 2 months after plea, and allowing for totality is, in all the circumstances of the case and the applicant, manifestly excessive.

11. The second ground is that the starting point of 18 months adopted by the judge for Charge 4 is manifestly excessive and/or wrong in principle.

12. On behalf of the applicant, Mr McGowan refers us to a number of authorities on sentencing for frauds involving credit card. The frauds involved the possession or use of counterfeit credit cards. Some of the cases also relate to the possession or use of identity cards.

13. In R v Chan Sui-to & Anor [1996] 2 HKCLR 128, the authority that laid down guidelines on sentencing in respect of credit card frauds, Yang CJ, delivered the judgment of the Court of Appeal, said:

"A number of authorities were cited to us to indicate the level of sentences for credit card frauds. It is not easy to reconcile the sentences, but in general we apprehend that a sentencing judge would need to consider various factors including:

1. The size of the operation e.g. whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards.

2. The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent.

3. Whether there is an international dimension.

4. Whether the accused played a major role, e.g. running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he is a mere "cog in the wheel" as a courier or a custodian or keeper.

5. Whether there is a plea of guilty.

In considering whether large sums of money were involved, we would suggest that, at the present cost of living, amounts up to $50,000 may be considered relatively small, amounts from $50,000 to $150,000 medium, and amounts above that may be considered large.

We now look at some of the authorities, bearing in mind the factors suggested above. It goes without saying that the five factors mentioned above are not intended to be an exhaustive list."

14. In Chan Sui-to, D2 pleaded guilty to 8 offences and was sentenced in the following manner by the trial judge:

(1) Counts 11 to 15: Obtaining property by deception - 3 years and 3 months on each count.

(2) Counts 16 and 17: Using a forged Hong Kong identity card - 4 months on each count.

(3) Count 18: Possessing a false instrument - 3 years and 3 months.

15. The trial judge ordered the sentences on Counts 11 to 15 and 18 to run concurrently, the sentences on Counts 16 and 17 to run concurrently, but consecutively to the concurrent sentences of 3 years and 3 months. The total came to 3 years and 7 months.

16. The Court of Appeal agreed with the submission of D2's counsel that her (D2's) criminality was less serious than that of D1 who was operating a medium size operation. D2 committed the offences under the influence of D1. The Court considered that the totality of sentences on D2 should be 3 years before plea. After giving credit to her plea, the court imposed the following sentences on D2, namely,

(1) Charges 11 to 15 and 18 - 2 years on each charge;

(2) Charges 16 and 17 - 4 months on each charge; and

(3) all sentences to run concurrently.

17. It is to be noted that for D2's use of a false Hong Kong identity card to obtain telephone services, the sentence was 4 months, concurrent.

18. In HKSAR v Poon Cho-shu, CACC 55/2000 (8 August 2000, unreported), where the applicant pleaded guilty to three charges of using a false instrument, one charge of attempting to use a false instrument, one charge of possession of a false instrument and one charge of possession of an identity card relating to another person, he was sentenced to a total of 3 years and 8 months' imprisonment by the trial judge. On appeal, the Court of Appeal reduced his overall sentence to 2 years and 8 months. The brief facts of the case indicated that the applicant, either alone or together with others, used three counterfeit credit cards in another person's name to purchase or attempted to purchase from different shops, having obtained goods and services to the value of $10,000 to $11,000. After being intercepted by the police, he was found to be in possession of a fourth counterfeit credit card and an identity card in the name of that other person. The Court of Appeal considered that the starting point of 4 1/2 years' imprisonment for the false instrument charges adopted by the trial judge was excessive and a proper starting point should be 3 years. However, the Court refused to interfere with a consecutive term of 8 months' imprisonment for the possession of the identity card.

19. The facts of the case before us are quite similar to those relating to the applicant in Poon Cho-shu. However, the offences committed by the applicant in the present case seemed less serious as he was the only person involved in the offences.

20. Mr Madigan, for the respondent, has also referred us to a number of cases emphasising the seriousness of credit card frauds as viewed by the courts. They include R v Wong Fuk-keung, CA 445/1993, HKSAR v Ng Swee-thiam [2000] 1 HKLRD 772, HKSAR v Shum Chung-wai, CACC 516/2001, HKSAR v Cheung Ka-wo [2002] 2 HKC 517. Mr Madigan's submission is that the starting point of 30 months' imprisonment adopted by the judge was appropriate.

21. While Mr McGowan does not challenge the propriety of 30 months as the starting point for Charges 1 to 3, he attacks the starting point of 18 months adopted by the judge for Charge 4. In this respect, the judge said in his Reasons for Sentence as follows:

"I have no doubt that this identity card went to reinforce your possession of the forged credit cards: a starting point of 18 months, reduced to 12 months for your plea, but that must be served consecutively to the 20 month sentences."

22. Mr McGowan refers us to HKSAR v Chan Cho-hei [2000] 2 HKLRD 698, where Gall J refused to interfere with a consecutive sentence of 4 months' imprisonment for the charge of possession of an identity card relating to another person. That is quite similar to Poon Cho-shu.

23. In HKSAR v Watt Siu-hung, CACC 93/2001 (13 July 2001, unreported), the Court of Appeal refused to interfere with the applicant's 8 months consecutive sentence on the charge of possession of an identity card relating to another person.

24. In HKSAR v Yau Wai-chun, CACC 417/2000 (9 February 2001, unreported), the Court of Appeal upheld a sentence of 9 months, with 3 months consecutive, on a charge of possession of another's identity card.

25. In all the above cases, the starting point adopted for the possession of another person's identity card was not more than 12 months. On this basis, Mr McGowan submits that the starting point of 18 months as adopted by the judge in the present case was either contrary to principle or manifestly excessive.

26. Regarding Charge 5, the judge said in his Reasons for Sentence:

"In respect of the 5th charge - this is the offence on 16 October, so you committed it whilst on bail, and I have already indicated to you that I take the view that that is an aggravating feature - there must be a partly consecutive sentence. I take an 18 month starting point, reduced to 12 months to reflect your plea, and 6 of those months will be served consecutively to the other sentences."

27. Mr McGowan relies on Chan Sui-to, Watt Siu-hung and Chan Cho-hei to submit that the starting point of 18 months' imprisonment adopted by the judge on Charge 5, possession of a counterfeit credit card, was excessive, for those cases all pointed at a starting point of 12 months.

Our view

28. We should approach the sentencing in this case by considering whether the overall sentence of 38 months' imprisonment was manifestly excessive.

29. The judge had the following to say about the applicant's personal circumstances:

"... you have pleaded guilty to a number of very serious offences. I really cannot understand how a man of 34 who has led a blameless life in the past and, by all accounts, a very positive and useful existence - you have held down reasonable jobs and you have looked after your family - can suddenly, like this, switch off and turn to crime in this way.

... it is the downturn in the economy which has caused you to lose your job and has resulted in you doing this. Well, I am afraid that cannot even begin to run as an excuse, although say that is the reason for it."

30. Regarding the starting point of 18 months adopted by the judge on Charge 4, despite the authorities referred to by Mr McGowan relating to possession of identity cards in the context of credit card frauds all pointing to a starting point of 12 months, the editors of Sentencing in Hong Kong, 4th Ed at p 547, cite a number of cases relating to possession of forged identity cards or those belonging to other persons, mostly committed by illegal immigrants, with the commentary that the customary sentence is 15 months' imprisonment for a first offender after a guilty plea.

31. It appears that the courts adopted a different approach to the same offence of possession of another person's identity card: a starting point of about 12 months (before giving credit to a guilty plea) was adopted for cases that were connected with credit card frauds but a starting point of 15 months (after giving credit to a guilty plea) was adopted in connection with illegal immigrant cases. What seems to us to be the possible reason is that the identity card offence is subsumed in the more serious offence of using forged credit cards on the one hand and the more serious offence of unlawfully remaining or working in Hong Kong on the other.

32. Another aspect to note is that, as commented by the judge in his Reasons for Sentence, cited above, the identity card found on the applicant upon his arrest by the police was connected with the offences in Charges 1 to 3. In Watt Siu-hung, Mayo V-P said:

"The judge adopted a starting point of 3 years for the credit card charges and 1 year for the identity card. She gave the Applicant the full one-third discount for his plea notwithstanding the fact that he had absconded while on bail....

The other complaint which is made is that the sentence relating to the identity card should have been made concurrent with the other sentences. While there was a connection between the offences the Judge cannot be criticised for ordering that the sentence be served consecutively as it did add a further dimension to the overall criminality of the applicant."

33. While we agree with the judge that the possession of another person's identity card increased the criminality of the applicant for its possible support of his use of the forged credit cards, the fact remained that the identity card was never uttered. Even if it had been uttered, it would have formed part of the same transaction in connection with Charges 1, 2 and 3 for the purpose of reinforcing the attempts by the applicant to use Card 1 and Card 2. In HKSAR v Liu Chi-keung [1999] 2 HKC 235, this Court (differently constituted) said:

" ... all the charges being part of the same transaction, there is no proper basis for consecutive sentences. The seriousness of such offences could properly be met by placing all the offences in the group of the most serious offences and imposing the highest appropriate penalty permissible upon a concurrent basis."

34. Viewing the culpability and criminality involved in Charges 1, 2, 3 and 4 as a whole, and also taking into account the applicant's previous good character, we consider the appropriate overall starting point should be 36 months' imprisonment concurrent, which should be reduced by one-third to 24 months to give credit for the guilty plea. Alternatively, we are of the view that there was no justification for the judge to have made the entirety of the reduced sentence of 12 months (for giving credit for the applicant's plea) on Charge 4 to run consecutively to the sentences on Charges 1 to 3. The appropriate order in respect of Charge 4 should have been to make 4 months consecutive.

35. Regarding Charge 5, while we are inclined to the view that the 18 months starting point may be on the high side, we consider that there was ample justification, in the circumstances of this case, for the judge to impose a consecutive 6 months on this charge.

Conclusion

36. For the reasons given above, we grant leave to appeal, and treating the application as the appeal, we allow the appeal by imposing the following sentences on the applicant:

(1) On Charges 1 to 3, 20 months' imprisonment on each, concurrent;

(2) On Charge 4, 4 months consecutive to all other sentences; and

(3) On Charge 5, 6 months consecutive to all other sentences.

37. The overall sentence on all the charges is therefore 30 months' imprisonment. To this extent, the appeal succeeds.