HKSAR v. LAI MEI YUK CANDY

CACC427/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.427 OF 2003

(ON APPEAL FROM DCCC NO.741 OF 2003)

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J U D G M E N T

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Hon Lunn J (giving the judgment of the Court) :

Background

1. On 11 September 2003, the applicant was convicted upon her pleas of guilty before Deputy Judge Chainrai in the District Court of :

(i)	five charges of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap.200 (charges 1, 2, 5, 9 and 14);
(ii)	four charges of fraud, contrary to section 16A of the Theft Ordinance, Cap.210 (charges 3, 7, 10 and 11);
(iii)	four charges of theft, contrary to section 9 of the Theft Ordinance, Cap.210 (charges 4, 8, 12 and 13), and
(iv)	one charge of access to a computer with dishonest intent, contrary to section 161(1)(c) of the Crimes Ordinance, Cap.200 (charge 6).

Sentence

2. The applicant was sentenced to a total of 2 1/2 years' imprisonment.

Facts

3. The factual basis upon which the applicant's pleas of guilty to these charges were tendered to and accepted by the court can be summarised shortly.

4. In June 2002, the applicant submitted an application form to HSBC for the issue of a Master card and an 'iCan' card in the name of a female work colleague. However, the contact address and telephone number of the purported applicant were those of this applicant and the purported signature made by this applicant (charge 1).

5. On 12 August 2002, the applicant repeated this process for a Visa card in an application made to Orix (charge 5).

6. On 9 August 2002, the applicant obtained the HSBC Master card and the 'iCan' card from HSBC by producing a false authorisation permitting the applicant to take possession of those cards (charge 2).

7. On 12 August 2002, the applicant used a computer to make an application on the Internet to HSBC for a JCB card (charge 6), which card was issued on 15 August 2002 when the applicant submitted a false authorisation to collect the card (charge 9). The use of the HSBC Master card by the applicant in the period on and between 9 August and 13 October 2002 to induce suppliers of goods and services to accept payment by use of the card is the basis of the fraud charge, that is charge 3. The total amount involved was $12,656.

8. Similarly, the applicant's use of the HSBC 'iCan' card to effect payment for goods and services to a total value of $7,313 is the basis of the fraud charge, that is charge 7.

9. The applicant's use of the Orix Visa card and the HSBC JCB card to effect payments of $20,036 and $450 respectively are the bases of the fraud charges 11 and 10.

10. The applicant's use of the four credit cards to obtain cash advances by withdrawals from ATMs were the subject of :

(i)	charge 4	'iCan' card	$17,200
(ii)	charge 8	HSBC Master card	$7,300
(iii)	charge 12	JCB card	$13,300
(iv)	charge 13	Orix Visa	$800

The overall total amount of payments effected and cash thereby obtained was $79,056.

11. On 26 November 2002, the applicant attended HSBC's offices and produced a false authorisation form to effect collection of a replacement for the HSBC JCB card. A bank employee detected a difference between the specimen signature and the authorisation signature and the police were called. The applicant was found to be in possession of all four credit cards. Under caution the application made a full admission to the above offences.

12. The applicant seeks the leave of this court to appeal against the sentence of 2 1/2 years' imprisonment imposed upon her.

Application to adduce evidence

13. Counsel for the applicant sought the leave of this court to adduce evidence, pursuant to section 83V(2) of the Criminal Procedure Ordinance, Cap.221. That material evidences repayments in December 2003 of $54,247 and $17,838, that is all monies owed to HSBC and Orix respectively in relation to all four credit cards. The applicant sought and the court heard de bene esse, the evidence of a psychological evaluation report and a psychiatric report in respect of the applicant's son and sister respectively.

14. Counsel for the respondent, for his part, did not oppose the application to admit that evidence. However having heard the evidence de bene esse we admit the evidence in respect of restitution only, the other evidence being not relevant to this court.

The perfected grounds of appeal

15. By grounds 1 and 2 counsel for the applicant submits that the learned trial judge failed to give sufficient weight to the circumstances in which the offences were committed, which circumstances, it was said, made it inappropriate for the Deputy District Judge to have had regard to the guidelines identified in the judgment of the Court of Appeal in R.v. Chan Sui To and Another, CA115/1996 (unreported).

16. By ground 3 this court is invited to have regard to events subsequent to the imposition of sentence, namely :

(i)	restitution of all monies owed to the two banks, and
(ii)	to the state of depression, it is said, of the seven-year-old son in consequence of his separation from the applicant.

Reasons for sentence

17. In passing sentence the learned Deputy District Judge adverted to the judgment of the Court of Appeal in Chan Sui To and summarised the factors there identified to be considered by a sentencing judge thus :

"... These include the size of the operation, the planning that has gone into perpetrating the fraud, whether there is an international dimension, whether the accused played a major role, whether there is a plea of guilty."

18. Of the monetary bands then identified in the judgment :

(i) up to $50,000 is described as relatively small;

(ii) $50,000 to $150,000, medium; and

(iii) amounts above that, large.

Of that the learned judge noted that the passage of seven years has occurred since the judgment and took the view that today $80,000, which is just over the amount the subject of the charges, was to be viewed as relatively small.

19. Of the defendant's role in these offences the learned Deputy District Judge determined :

"Here, the defendant operated alone. It was not even a very sophisticated operation. She used her own address and mobile phone number, and it was inevitable that she would be caught once the matter came to light. There was no elaborate planning or equipment, and without an international dimension. The sum of money involved is relatively small and her offences were perpetrated by greed."

Nevertheless, the learned judge went on to acknowledge that credit card frauds are serious.

20. In relation to the argument submitted in grounds 1 and 2, it is perfectly clear from her findings that the learned judge did not view the applicant as a member of a syndicate, nor did she approach sentence on that basis. She found that the applicant acted alone without elaborate planning and with the inevitability of being caught. She acknowledged the clear record of the applicant and found that the pleas of guilty were the only mitigation of weight. We are satisfied that on the facts as they were then that the total sentence of 2 1/2 years' imprisonment imposed upon the applicant was entirely appropriate.

Full restitution

21. The applicant has adduced evidence before the court of full restitution made to the two banks, which at the time of the sentencing, were the losers in consequence of these offences committed by the applicant of $79,056.

22. In his submission, counsel for the respondent has made no reference to any of the cases referred to under the heading "Restitution" in the recently published 4th edition of Cross, "Sentencing in Hong Kong". Rather, he referred the court to two much earlier decisions. That is not helpful to this court. In recent times the court has been concerned that greater emphasis be placed in sentencing on the interests of victims.

23. In Secretary for Justice v. Hui Siu Man [1999] 2 HKLRD 236 at page 242, Power VP in the judgment of the Court of Appeal said :

" We think it proper to make this final observation. In cases of commercial fraud it is uncommon to find an immediate acknowledgment of complicity and full restitution. Usually, the offender pleads that no money is left either because of business or, very commonly, gambling losses. The unfortunate victims simply have to bear their loss. We are fully mindful of the duty of the courts to pass sentences which will protect the community by deterring persons who might be like-minded from committing similar offences. Indeed, in the past that has been the overwhelming consideration. However, in modern times, more emphasis has been placed on factors such as rehabilitation of offenders and the interests of the victims of crime. There is no encouragement to make restitution if the offender knows that it will have little effect on sentence. We are satisfied that full restitution, particularly in commercial crimes, must be encouraged and that this can only be done if real weight is given to it as a factor mitigating sentence."

24. Of restitution which is made at a late stage, in the judgment of the Court of Appeal in Secretary for Justice v. Lin Min Ying [2002] 3 HKC 415 at 422A, it was said :

"... Of course it is much stronger mitigation for counsel to be able to show that a defendant has immediately faced up to his or her responsibilities and made every effort from an early stage to repay any dishonest gains to the victim. However, even when restitution or compensation is paid much later in time, whatever a defendant's motives for making reparation, the mitigation that dishonest gains have been repaid is nonetheless a material factor in mitigation. [See: Secretary for Justice v Hui Siu Man [1999] 2 HKLRD 236]."

25. Of the need to reflect this mitigating factor by way of a discount greater than one-third given in normal circumstances in consequence of a plea of guilty, the Court of Appeal in their judgment in HKSAR v. Leung Shuk Man [2002] 3 HKC 424 at page 428I, paragraph 13 said :

"... If the situation were otherwise, and a specific discount was not given for the payment of compensation or restitution, there would be no advantage to an offender who has repaid some or all of the ill-gotten gains to the victim, over and above the one-third discount the offender could necessarily expect to receive for a timely plea of guilty.

There are, of course, no guidelines, as to precisely what discount should be given where compensation for a victim's losses has been paid or partially paid. The circumstances of each case will obviously vary. A sensible use of the sentencer's discretion will normally enable the offender to receive an appropriate discount. In a case such as the present one, particularly where full repayment has been made, a significant discount, above and beyond the usual one third for plea, should plainly be given."

Conclusion

26. We grant the application for leave to appeal against sentence and treat this application as the hearing of the appeal. In the circumstances we do take into account as a factor of mitigation, not available to the learned Deputy District Judge, the fact of full restitution to the victims. In the judgment of this court, this factor entitles the applicant to a further discount in the total sentence of imprisonment imposed upon her of six months' imprisonment.

27. We give effect to that determination by quashing the order that six months of the sentences imposed in respect of charges 3, 4, 7, 8, 10, 11, 12 and 13 be served consecutively to the sentences imposed on charges 1, 2, 5, 9 and 14 and order that all of the former sentences be served concurrently with the latter.

28. In the result, the total sentence now imposed upon the applicant is two years' imprisonment.