HKSAR v. KWAN PO KEUNG

CACC79/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 79 OF 2011

(ON APPEAL FROM DCCC 1373 OF 2010)

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BETWEEN

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JUDGMENT

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Hon Lunn JA (giving the judgment of the Court)

1.  At the hearing the applicant sought leave to appeal against the sentences imposed upon him in the District Court by Deputy Judge A Cheang on 15 February 2011 following his conviction on his pleas of guilty to three charges. Another charge of obtaining property by deception (Charge 1) by the use of a stolen credit card and a charge of failing to surrender to custody without reasonable excuse (Charge 5) was ordered to lie on the court file not to be proceeded with without the leave of the court.

THE CHARGES AND SENTENCES

2.  The judge imposed the following sentences :

Charge 2 :   obtaining property by deception — 3 years’ imprisonment;

Charge 3 :   burglary — 2 years’ imprisonment; and

Charge 4 :   handling stolen goods — 2 years’ imprisonment.

One year of the term of imprisonment imposed in respect of Charge 3 was ordered to be served consecutively to the terms of imprisonment imposed in respect of Charges 2 and 4, whereas 4 months’ of the term of imprisonment imposed in respect of Charge 4 was ordered to be served consecutively with the sentence imposed in respect of Charge 2.  In total, the sentence of imprisonment imposed upon the applicant was 4 years’ and 4 months’.

THE FACTS

3.  The applicant had committed the offences reflected in the three charges in 1998. On 18 February, 1998 he had been caught ‘red-handed’ in the act of committing the offence reflected in Charge 3, a burglary of non-domestic premises.  He was in possession of a mobile telephone, which he had stolen in the burglary and which was identified by its owner.  In his flight from the premises he had thrown away a wallet.  It was found to contain seven credit cards, which had been reported lost by their seven respective owners in 1997/1998. His possession of those seven credit cards was the subject of Charge 4.

4.  Having been arrested and cautioned the applicant admitted the commission of the burglary and theft of $10,410 and the mobile phone.  Also, he admitted having been given one of the seven credit cards, together with a credit card which he had lost, by someone whom he described as ‘Ah Chuen’.  He admitted that he had used the missing credit card to obtain jewellery and watches from a ‘Duty-Free’ shop in Tsim Sha Tsui.  Enquiries confirmed that the credit card had been used on 11 February 1998 to obtain a ring and two watches to the value of $56,116.  That conduct was the subject of Charge 2.

5.  Although the applicant was initially remanded in jail custody, on 6 March 1998 he was released on bail by the court.  However, he failed to attend court as required on 27 March 1998.  On 25 October 2010, the applicant surrendered to North Point Police Station.

REASONS FOR SENTENCE

6.  In sentencing the applicant the judge noted that the applicant was 49 years’ of age and had 55 previous convictions, for offences committed in the period 1979 to 1993.  Furthermore, he observed that many of those offences were offences of dishonesty : 15 offences of obtaining a pecuniary advantage by deception; six offences of obtaining property perfection; three offences of theft; two offences of handling stolen goods and one offence of evading liability by deception.

7.  Having adverted to the judgment of this court, differently constituted, in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 the judge said (page 17 D-F) :

“I consider the defendant’s previous convictions on dishonesty-related offences an aggravating factor which calls for an additional imprisonment term of six months for each of the 2^nd, 3^rd and 4^th charges.”

8.  Nevertheless, the judge went on to indicate that although he would increase the individual sentences by that period of imprisonment he would not increase the overall imprisonment to the full extent.

STARTING POINT FOR SENTENCE

Charge 2 (obtaining property by deception)

9.  In determining the appropriate starting point to take for sentence in respect of Charge 2, obtaining property by deception, the judge stated that he had regard to the value of the goods so obtained and to several judgments of this court including R v Chan Sui To [1996] HKCLR 128 and HKSAR v Chau Yiu Cheong (unreported; 3 June 2009, CACC363/2008).  In particular, he noted that in the latter case this court had adverted to the importance of the integrity of the credit card system in modern commercial life.  In the result, he stated that he took a starting point of 4½ years’ imprisonment.

Charge 3 (burglary)

10.  The judge stated that the usual starting point for a burglary of non-domestic premises was 2½ years’ imprisonment and took a starting point of 3 years’ imprisonment.

Charge 4 (handling stolen goods)

11.  Having noted that no fewer than seven stolen credit cards were the subject of the handling stolen goods offence, the subject of Charge 4, the judge stated that he took a starting point of 3 years’ imprisonment.

Discount from the starting point

12.  Although the judge noted that the applicant had successfully absconded from justice for over twelve years, nevertheless he afforded the applicant a discount of one third from that taken for the starting point for sentence.  He said he did so having regard to the fact that the applicant had surrendered voluntarily to the police and that he had not committed any criminal offences during the period at which he was at large.  In consequence, the judge imposed the sentences for the individual charges described earlier.

The imposition of partly consecutive sentences

13.  In ordering that 4 months’ of the sentence of imprisonment imposed in respect of Charge 4 was to be served consecutively to the sentence of 3 years’ imprisonment imposed in respect of Charge 3 the judge said that, albeit both offences concerned the use of stolen credit cards, he did not regard the commission of the two offences as being “one course of criminal conduct”.  In ordering that one year of the term of imprisonment imposed in respect of Charge 3 was to be served consecutively to that imposed in respect of Charges 2 and 4 the judge stated that he did so on the basis that the offence the subject of Charge 3 was “separate and distinct” from the other two charges.

GROUNDS OF APPEAL AGAINST SENTENCE

Charge 2 : obtaining property by deception

14.  On behalf of the applicant Mr Douglas Kwok submitted that, having regard to the fact that only one credit card was used in obtaining property by deception, the judge had erred in taking a starting point of 4 years’ imprisonment in respect of Charge 2.  He contended that the applicant’s conduct evidenced only a small scale credit card fraud.  In such a case, in the absence of evidence pointing to a larger operation, he submitted that a starting point for sentence of 3 years’ or less was appropriate.  [See HKSAR v Wong Chin Hang (unreported; 30 April 2009, CACC409/2008); HKSAR v Tu I Lang (unreported; 18 May 2007, CACC464/2006) and HKSAR v Cheung Ka Wo, Johnny (2002) 2 HKC 517.]

Charge 3 : burglary

15.  Mr Kwok submitted that, in deciding to enhance sentence and identifying the enhancement of sentence for each of the charges, the judge had erred in doing so before he had stipulated the appropriate starting point for the offence.  Given that the judge had taken different starting points for sentence for the offences, stipulating an enhancement of sentence of 6 months’ imprisonment for each of the offences was to enhance sentence by a different proportion or percentage where the starting point differed.  Thus, the enhancement of sentence in respect of Charge 2 was 12.5%, whereas the enhancement of sentence in respect of Charges 3 and 4 was 20%.  Given that the applicant had no previous convictions for the offence of burglary the judge was wrong in principle to enhance sentence for Charge 3.

Charge 4 : handling stolen goods

16.  Next, Mr Kwok contended that the starting point taken by the judge as the starting point for the offence of handling stolen goods, namely 2½ years’ imprisonment, was manifestly excessive.  There was no evidence of how the applicant came to be in possession of the seven stolen credit cards, in particular no evidence that he was the thief.  The applicant was to be regarded as a ‘mere handler’.  [See The Queen v Chan Wing Kwan (unreported; 19 September 1985, CACC121/1985.)]

17.  Mr Kwok repeated his submission that the judge had erred in determining the quantum of enhancement of sentence before stipulating the starting point to be taken for Charge 4.  In any event, the judge had erred in decidinging to make an enhancement of sentence for the offence of handling stolen goods given that the applicant’s last conviction for that offence was twenty five years’ earlier.

A CONSIDERATION OF THE SUBMISSIONS

Starting point and enhancement of sentence

18.  As is obvious from the phrase itself, a judge should identify and stipulate the ‘starting point’ for sentence before giving consideration to the application of any discount or, in the circumstances of this case, an enhancement of sentence.  However, as noted earlier, having adverted to what he described as the applicant’s “appalling”criminal record and noting that most of those convictions were in respect of offences of dishonesty, the judge determined, firstly that fact to be an “aggravating factor” in the commission of the offences for which the applicant was to be sentenced.  Secondly, without analysis or explanation the judge stipulated as appropriate a term of imprisonment of 6 months’ to be added to each of the individual sentences of imprisonment to be imposed upon the applicant.  Then, and only then did the judge identify and stipulate what he described as the ‘starting point’.  However, the terms of imprisonment that he identified under the rubric ‘starting point’, for each of the three offences, included the added term of six-month imprisonment that he had identified as the appropriate enhancement of sentence.  With respect to the judge, that was the wrong approach.

19.  The relevance of the antecedent criminal history of a defendant to a court required to impose sentence for the commission of another offence was addressed by the High Court of Australia in Veen v The Queen (No. 2) (1988) 164 CLR 465 in the joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ at page 477, paragraph 14 :

“… (it) is a factor which may be taken into account in determining sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences : Director of Public Prosecutions v Ottewell (1970) AC 645, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.” [Emphasis added.]

20.  That analysis resonates with the observations made in the judgment of this court delivered by Stuart-Moore VP in Chan Pui Chi (page 883C-E) :

“… whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he is already served the penalty, the constant repetition of this applicant’s trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far sentence as sentence is concerned. The sentences he had received in the past had proved to be no deterrent to all, and prevention of further repetition was demonstrably in the public interest.”

Of the latter two factors, he went on to say (834B) :

“… the starting point… will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court’s duty to protect the public on the other. The court, in other words, is passing a deterrent sentence on the persistent offender.”

As was observed in the judgment of this court in HKSAR v Kwang Sau Fan [2002] 4 HKC 184 (at 195B, paragraph 43) in such circumstances the defendant is to be regarded as having “cocked a snook at the system”.

21.  Accordingly, in determining the applicant’s moral culpability the judge was entitled to have regard to the commission of the instant offences in the context of the applicant’s persistent commission of offences, in total some fifty-five, in the nineteen year period prior to the commission of these offences.  In August 1993, he had been sentenced to a total of 4 years’ imprisonment for ten offences, four of which were for obtaining property by deception and one of which was for evasion of a liability by deception.  One year of that total term of imprisonment was imposed in consequence of the activation of a suspended sentence of one year’s imprisonment imposed for no less than fifteen offences of obtaining property by deception.  Clearly, an aggravating feature of the commission of the instant offences was the applicant’s persistent commission of offences of dishonesty. That was relevant to the view to be taken of the gravity of the offence, the need to deter the applicant and protect the public. The sentences imposed on the applicant in the past had failed to deter him from committing offences of that type.  Furthermore, there remained the issue of protecting the public.

22.  However, clearly relevant to a consideration of the factors of deterrence and the protection of the public was the fact that in the period during which he had absconded from justice, the applicant has not been convicted of any criminal offences.  That was a period of no less than 12 years’ and 7 months’.  The respondent accepted that there was no evidence that the applicant had been other than in Hong Kong during that period, the relevance of which is that it is safe and proper to treat him as a person who did not re-offend during that period.

23.  It is clear that by the time in February 2011 when the court came to sentence the applicant for the offences, which he had committed in February 1998, for whatever reason, the applicant had long since ceased his pattern of the persistent commission of offences of dishonesty.  As a result, the factors of deterrence and the need to protect the public had fallen away. However, the third factor, namely the view to be taken of the gravity of the offences themselves in the context of persistent re-offending and the element of retribution, remained relevant.

24.  In the result, we are satisfied that the judge fell into error in determining that it was appropriate to enhance each of the individual sentences of imprisonment by six months to reflect the aggravating factor of the applicant’s appalling criminal record. In the first place, it was inappropriate to stipulate the same fixed term of enhancement to the different offences, for which different starting points for sentence were taken. Secondly, we are satisfied that, given that the only factor relevant to enhancement sentence that was apposite was the gravity of the offence, the enhancement of sentence in each case was too great.

Obtaining property by deception (Charge 2)

25.  It is to be remembered that the misconduct which the applicant accepted by his plea of guilty to Charge 2 was the unauthorised use of a credit card belonging to another person, together with the misrepresentation that he was that person, on a single occasion to obtain jewellery and watches to the value of $56,116.  The applicant had told the police that he had been given that credit card by one person and sold the property obtained to another person for half its monetary value.  The applicant made no admissions and gave no explanation for his possession of seven other credit cards, the loss of which had been reported by their respective owners, found in the wallet that he discarded whilst being chased by the police prior to his arrest.  In any event, his possession of those credit cards was the subject of Charge 4.

26.  We are satisfied that, having regard to the monetary value of the property obtained on a single occasion, what the judge described as the the starting point taken for sentence for Charge 2, namely 4½ years’ imprisonment, after an enhancement of 6 months’ imprisonment, was excessive.  In our judgment, the starting point to be taken for sentence for the offence was 3 years’ imprisonment,which sentence it was appropriate to enhance by 4 months imprisonment to reflect the gravity of the offence in the context of persistent re-offending. Accordingly, the appropriate sentence for Charge 2, before taking mitigation into account, is 3 years’ and 4 months’ imprisonment.

Burglary (Charge 3)

27.  No issue was taken by Mr Kwok in his submissions that the judge erred in stipulating a starting point to be taken for sentence in respect of the burglary offence, Charge 3, namely 2½ years’ imprisonment.  Objection was taken in respect of the element of enhancement by 6 months imprisonment. We are satisfied that the judge was correct in identifying a starting point of 2½ years’ imprisonment for a non-domestic premises burglary in which over $10,000 and a mobile phone was stolen.  Given that the applicant had not been convicted of the offence of burglary before, in our judgment the appropriate enhancement of sentence is two months imprisonment.

Handling stolen goods (Charge 4)

28.  The applicant’s handling of no fewer than seven stolen/lost credit cards was seriously culpable misconduct.  The potential for loss on the one hand and on the other hand gain as a result of the unauthorised use of those credit cards was significant.  We are satisfied that 3 years’ imprisonment was the appropriate starting point to take for sentence for the offence of handling stolen goods. To reflect the gravity of the offence, in the context of persistent re-offending, an enhancement of 4 months’ imprisonment was appropriate.  Accordingly, the appropriate sentence for Charge 4, before taking mitigation into account, is 3 years’ and 4 months’ imprisonment

DISCOUNT

29.  The judge fell into error in affording the applicant a discount of one third from the starting points taken for sentence.  Here, the applicant absconded and successfully remained a fugitive from justice for 12 years’ and 7 months.  His eventual surrender to the police and his pleas of guilty entitled him to some discount, albeit a lower discount than that afforded to those who plead guilty in the normal course of proceedings.  We are satisfied that in all the circumstances 25% is an appropriate discount of sentence from the sentences identified earlier, as being the sum of the starting point for sentence and the element of enhancement.  [See S-J v Choi Wing Wah [1998] 4HKC 373 at 375I-376A and HKSAR v Chow Tak Fuk -unreported; 15 February 2005, CACC428/2004.]

30.  It follows that, in our judgement, the appropriate sentences for charges 2, 3 and 4 were sentences of imprisonment of two years’ and six months’; two years and two years’ and six months

TOTALITY

31.  Having regard to the different circumstances leading to the convictions in respect of the obtaining by deception charge (Charge 2) and the burglary charge (Charge 3) we are satisfied that the judge was correct in determining that it was appropriate to order that one year of the latter sentence of imprisonment be served consecutively to that imposed in respect of the former.  Similarly, as the judge determined, the applicant’s culpability respect of the handling of stolen goods charge (Charge 4) required a part of that sentence to be served consecutively to the sentences imposed in respect of the other charges.  However, having regard to the totality of sentence we are satisfied that only 2 months of the sentence of imprisonment imposed in respect of Charge 4 is to be served consecutively to the sentence imposed in respect of Charge 3.

CONCLUSION

32.  In the result, we allow the application for leave to appeal against sentence and, treating the application as the hearing of the appeal, we allow the appeal and quash the sentences imposed by the judge.  In their place we impose the following sentences and make the following orders :

Charge 2 :   2 years and 6 months’ imprisonment;

Charge 3 :   2 years’ imprisonment; and

Charge 4 :   2 years and 6 months’ imprisonment.

32.  We order that one year of the sentence of imprisonment imposed in respect of Charge 3 be served consecutively with the sentence of imprisonment imposed in respect of Charge 2. Further, that 2 months’ of the sentence of imprisonment imposed in respect of Charge 4 be served consecutively with the resulting sentences imposed in respect of Charges 2 and 3.  Accordingly, the total sentence of imprisonment imposed upon the appellant is 3 years’ and 8 months’.