HKSAR v. HO KA YEE

CACC 245/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 245 OF 2005

(ON APPEAL FROM DCCC NO. 1403 of 2004)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  On 17 May 2005, the applicant, aged 40, was convicted of using a false instrument, namely a Visa card bearing the name Chung Lai-hong, contrary to section 73 of the Crimes Ordinance, Cap. 200, following a trial in the District Court before Deputy Judge M Wu.  She was sentenced to 30 months’ imprisonment and now seeks leave to appeal against conviction and sentence.

2.  A 38-year-old co-defendant, Chung Lai-hong (D1), pleaded guilty at the outset of the trial to this offence and he was sentenced to 2 years’ imprisonment.  He received concurrent sentences on two other charges related to the use of another false credit card.  All the offences occurred on 16 December 2003.  The applicant was acquitted on these two further charges.

Conviction

3.  The perfected grounds of appeal against conviction are set out, somewhat unusually, in the style of a written argument.  In essence, these “grounds” come down to a single complaint that the judge ought not to have drawn an inference that the applicant was jointly involved in the offence with D1 because, while the applicant’s behaviour was admittedly suspicious, there was insufficient evidence to rule out all other possibilities.

4.  We are unable to accept this submission.  A recitation of the basic facts reveals that the prosecution’s case against the applicant was a strong one.

5.  On 16 December 2003, the applicant and D1 went into a shop in Pacific Place where products with a well-known brand name are sold.  The applicant indicated an interest in a bag valued at $5,500.  In due course, D1 produced a Visa card to make payment and both he and the applicant were at the cashier’s desk while the transaction was completed.  However, because the cashier (PW2) doubted the authenticity of the credit card she called the card centre for verification.  PW2 noticed also that the applicant began talking to her about the popularity of the bag they had chosen in a way which made her believe that her attention was being deliberately distracted.  Then, as PW2 lifted the telephone, the applicant asked her why she was making a call and whether there was anything wrong with the credit card.  The judge’s Reasons for Verdict describe what followed in these terms (where the applicant is referred to as ‘D2’):

“… PW2 told D2 that she was required to contact the credit card centre.  D2 then asked PW2 to hurry up and said that she no longer wished to buy the bag and wanted to get back the card.

6.  Meanwhile, D1, who was standing behind D2, turned and walked towards the doorway of the shop.  At the same time, D2 tried to snatch the credit card from PW2 but in vain.  D2 then turned and walked out of the shop in a quick pace.  Through the walkie-talkie, PW2 immediately notified the security guard …… , PW3, Chan Fung, to chase after D1 and D2, who were suspected of using [a] forged credit card.

7.  PW3 gave chase and managed to stop D2 at the entrance of Mark[s] & Spencer in the same shopping mall.  Being intercepted, D2 told PW3 to release her, not to arrest her and to give her a chance …… PW3 took D2 back to the …… Shop.  On the way back, D2 kept on begging PW3 not to arrest her and to give her a chance.  A report was made to the police.

8.  Shortly after, PW6, WPC4152, arrived …… After making enquiries, PW6 arrested and cautioned D2 for using a forged credit card …… Under caution, D2 said that she did not know D1.  She only took D1 to buy things.” (Appeal bundle pp. 18-19)

6.  In subsequent interviews at the police station, the applicant denied knowing that the Visa card in D1’s possession was, as the evidence established, a forgery.

7.  When the applicant testified, she described how she had come to know D1 through a friend.  He was a mainlander who came to Hong Kong to work.  She had been with him to have meals on a few occasions and they had telephoned each other.  On 16 December 2003, the applicant was asked by D1 to go shopping with him and, when he indicated that he wanted to buy a bag, the applicant took him to a shop in Pacific Place where he could do so.  The applicant admitted asking the saleslady (PW1) to take the bag down from the shelf to enable them to look at it and to make enquiries about its popularity.  When she saw D1 leaving the shop, she followed him.  Importantly, she denied trying to snatch the Visa card from PW2 as she left.

8.  The judge rejected the applicant’s account as “totally unconvincing and a pack of lies” for the cogent reasons she gave in arriving at her verdict having concluded that the applicant was “evasive, hesitant and incoherent in giving her evidence”.  The judge went on to analyse the legal aspects of this relatively straightforward case with accuracy and clarity, before finding that the only reasonable inference to draw was that the applicant had known D1 was using a forged credit card and was acting in concert with him.  The cumulative effect of the evidence against the applicant in our opinion left no room for any other sensible conclusion.

9.  The application in regard to conviction is without merit and, accordingly, it is dismissed.

Sentence

10.  Turning to the application for leave to appeal against the sentence of 2½ years’ imprisonment imposed on the applicant for her part in the offence, the judge took a starting point of 30 months, as opposed to 36 months in D1’s case, having taken the view that the applicant could be treated as a person of previous good character.  Her only previous conviction was minor in nature and was not of a similar kind to the present offence.  By contrast, D1 had two similar previous convictions but, as he pleaded guilty and was given the usual one-third discount, he ultimately received a 2-year sentence.

11.  Mr Beel, on the applicant’s behalf, made two principal submissions.  He contended, firstly, that the applicant’s starting point should have been significantly less than the starting point the judge adopted for D1 and, secondly, that this was a “very small operation” having regard to what was said in R v Chan Sui-to & Anor [1996] 2 HKCLR 128.  Mr Beel suggested, in submissions which were commendable for their brevity and the clarity with which they were made, that there were no aggravating factors to be taken into account which could justify a starting point above about 18 months.

12.  We have recently commented on Chan Sui-to’s case in HKSAR v Chan Wai-kin CACC 237/2005 (unreported) where it was argued unsuccessfully that a 4-year starting point for a conspiracy to use 3 false credit cards with fraudulent intent was manifestly excessive.  Goods worth just over $43,000 were obtained in 3 different shops before the applicant was arrested. In that case, having summarised the factual background in Chan Sui-to & Anor, which concerned a “factory” where false credit cards and telephone cards were made using the machinery and equipment found there, this court commented that:

“7.  In the guidelines given by the court in Chan Sui-to & Anor, it was held that a person who played ‘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 5 to 6 years after trial’.  Somewhat curiously, the court in that case, having gone on to say that the sum of money involved is only one of the factors to be taken into account and ‘is not even the most significant factor’, and having concluded that the 1st appellant was operating a medium-sized operation, went on to state:

‘Applying our guideline, we think that the totality of the sentences on D1 should be 4 years before plea’.

This starting point, at a time when the policy of giving a one-third discount had not yet been fully implemented, was reduced to 3 years’ imprisonment to reflect the guilty pleas.

8.  As Mr Hemmings (who represented the 1st appellant in Chan Sui-to & Anor) readily accepted in the course of his most able submissions, no reason emerges from the judgment in that case for the failure of the court to follow its own guideline tariff of ‘between 5 and 6 years’ (before giving credit for a plea of guilty) for a medium-sized operation.  Although Yang CJ stated that the guidelines he had just announced ‘may be adjusted upwards or downwards according to circumstances’, we have not been able to understand either the contradiction which is apparent from the court adopting a 4-year starting point or the court’s reason for imposing such a modest sentence for offences of considerable gravity.

9.  However, the principles which were not intended to be exhaustive and the guidelines applicable to sentencing in cases where there has been fraudulent use of credit cards (as opposed to the actual outcome of the appeal in Chan Sui-to & Anor) continue to provide valuable assistance.”

13.  The guidelines in Chan Sui-to provide very limited assistance towards sentencing in cases of the more usual kind of which the present facts provide a common example.  Here, there is obvious evidence of advance planning by a team consisting of two persons working together to commit a credit card fraud designed to obtain a luxury item in an expensive shopping mall.  Credit cards are an integral feature of commercial life in Hong Kong and, as such, when the system is abused it has long been held that sentences which provide a proper deterrent are necessary.

14.  We do not consider that in the circumstances of the present case, the sentence imposed was manifestly excessive or wrong in principle.  The applicant played a full and active role in the offence and had shown no remorse of any kind which, if this had been demonstrated, would have led to the imposition of a more lenient sentence.

15.  Accordingly, the application is dismissed.