R. v. KONRAD VALENTINE CHILDS

IN THE COURT OF APPEAL

1996, No. 651

(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant in this matter pleaded guilty before District Judge Beeson to 16 charges. The first, one of using a false instrument particularized that he, on 4th September 1996, at "Just Gold" at 607 Nathan Road, used a gold Mastercard in the name of Peter Fisher which he knew to be false with the intention of inducing Lam Kin-wai, the shop keeper, to accept it as genuine, and by reason of so accepting it, to do something to his prejudice. The second was a charge of possession of false instruments which alleged that on the same day he had under his control two gold Mastercards and a gold Visacard all in the name of Peter Fisher, which he knew or believed to be false, with an intention to use them to the prejudice of another. He also pleaded guilty to 14 charges of obtaining property by deception. Two were on 29th August, two on 31st August, two on 1st September and eight on 2nd September. I will read only the first as all were similar but, of course, involving different shops and different goods. It particularized that he, on 29th of August 1996, at Shop 269, Ocean Centre, Harbour City, dishonestly obtained a Marlboro Classic brown coat valued at $4,080, a black leather vest valued at $2,712, a number of shirts of varying values, a pair of shorts valued at $672 and two T-shirts valued at $1,278, to a total value of $11,190 by using a counterfeit Mastercard in the name of M. Barrau.

2. The total value of the goods obtained up to the time of apprehension was $63,672. The trial judge said when sentencing:

"The facts that you have admitted show that you were arrested by the police while you were in the course of trying to buy gold ornaments using a counterfeit Master Charge credit card. The shop owner knew that it was a counterfeit and reported it to the police. The police arrived, arrested and searched you, and two more counterfeit credit cards were found in the name of Peter Fisher. You took the police to the hotel where you were staying, in Nathan Road, and your luggage was searched and it was found to be full of items that you had obtained through the use of counterfeit credit cards."

3. The applicant admitted to the police that he had come from Bangkok to go on a shopping spree and that he would get 30 per cent commission on each deal. It seems that this means that he would in the outcome have been paid 3o% of the value of the goods which he obtained by using the forged credit cards. He appeared before Judge Beeson with a clear record. It was said that he had had matrimonial trouble with his wife in Thailand who had absconded with his savings.

4. The judge when sentencing referred to the case of R. v. Chan Sui-to (Criminal Appeal no. 115 of 1996) which indicates sentencing guidelines in relation to credit card frauds. The then Chief Justice Sir T.L. Yang says at p.13:

"Allowing for the different facts and the varying degrees of culpability, it is impossible to formulate a set of principles of sentencing from those decisions. We think however it would be helpful to the courts if they were guided by some criterion. 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.

The sum of money involved is of course only one of the factors to be taken into account. It is not even the most significant factor"

The matter before us as far as the amount is concerned falls within the $50,000 to $150,000 bracket and it does have an international dimension. The trial judge went on to say:

"The Court of Appeal said that the sentencing judge, as well as taking into account the size of the operation, should consider whether there was a lot of planning that needed to go into the perpetration of the fraud, whether technical skills are needed and whether there is an international dimension to the offence. The court is also enjoined to take note of whether or not the accused played a major role, either in the running of the syndicate or organising the use of cards, or whether he can be considered a cog in the wheel or the courier or a custodian, or a keeper and, of course, the court has always to take into account whether or not there is a plea of guilty."

5. We cannot agree with the trial judge when she characterized the applicant as "a courier". He was not. That term covers a person who is found carrying cards. The applicant was in a more serious category as he was a user of cards and the active participation in the execution of the fraudulent operation. The trial judge when sentencing said referring to the authorities:

".... an accused who played an active, but not necessarily a key, role in a medium-sized operation involving between $50,000 and $150,000, with no elaborate planning and equipment and without an international dimension, should receive a sentence of 5 to 6 years after trial and that the sentences may be adjusted upwards or downwards according to circumstances."

She then noted that this case had an international dimension and went on to say:

"I think an overall sentence in this case, for conviction after trial, would be 6 years and I propose to sentence on the following basis.

In respect of charge 1, I take a starting point of 5 years and the defendant will be sentenced to 3 years and 4 months' imprisonment.

In respect of charge 2, I take a starting point of 3 years and the defendant will be sentenced to 2 years' imprisonment. Those sentences are ordered to run concurrently.

In respect of charges 3 to 16, taking into account the totality principle, I take a starting point of 5 years in respect of each and sentence the defendant on each of charges 3 to 16 inclusive to 3 years and 4 months' imprisonment. I order that these sentences on charges 3 to 16 run concurrently. However, I order that 18 months of the sentence on charges 3 to 16 to run consecutive to the sentences on charges 1 and 2. That makes a total of 4 years and 10 months' imprisonment."

6. Mr. Chan, who appears for the applicant, first argues that the judge, having adopted six years as a starting point, failed to give a proper discount of one-third thus reducing the sentence to four years. We do find some difficulty with the mechanics of the assessment of the judge. But what we must ask is whether in the outcome the sentence of four years and ten months was, on the facts, manifestly excessive or wrong in principle. Mr. Chan further argues that the judge failed to take into account that the applicant had a clear record, that he pleaded guilty, that the offences were similar and were committed within a few days of each other and failed to give proper weight to the background of the defendant and the value of the goods. We are by no means satisfied that there was any such failure on the part of the trial judge. This was an open-ended credit card fraud operation. The applicant was at the time of arrest in the process of using a card in an attempt to obtain gold ornaments. We emphasize again the serious view taken by this court of such conduct. Offenders such as this come as conscienceless predators intent upon defrauding shop keepers of Hong Kong and making off with their booty. The sentences imposed must not only punish the offender but must also carry a deterrent element. As we have said although we found some difficulty with the mechanics of the assessment of the trial judge we, at the end of the day, are left in no doubt that the overall sentence was neither too severe nor manifestly excessive and the application must, therefore, be refused.