HKSAR v. CHEN WING HONG

CACC 40/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 40 OF 2005

(ON APPEAL FROM DCCC 1044 of 2004)

____________

____________

_______________

J U D G M E N T

_______________

Hon Lugar-Mawson J: (giving the judgment of the Court):

Background

1.  On 6 January 2005, the Applicant, Chen Wing Hon, pleaded guilty in the District Court before Deputy Judge W C Li, to five charges of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210 and one charge of possession of a false instrument, contrary to section 75(1) of the Crimes Ordinance, Cap. 200

2.  The Judge sentenced the Applicant to 12 months imprisonment on each of these charges, but ordered that he serve 3 months of the sentences on each of the 2^nd to 6^th charges inclusive consecutively to the 12 months sentence for the 1^st charge, making his total sentence for all six charges one of 27 months’ imprisonment.  In addition, as the Applicant was at the time of sentence serving three concurrent terms of 15 months’ imprisonment passed on him in the Eastern Magistrates’ Court for a charge of possession of a forged identity card and two charges of possession of a false instrument, the Judge ordered that the Applicant serve the sentences he had passed on him in this present case consecutively to those sentences, making his total period of imprisonment for all his offences one of 42 months’ imprisonment.

3.  The Applicant now seeks leave to appeal against sentence. 

Facts

4.  The five deception charges related to the Applicant’s use, on 8 January 2004, of a forged credit card to make purchases at five different shops, one in Park Lane, Tsim Sha Tsui and four in Telford Plaza.  The total value of the goods he obtained with this card was $9,500.  The possession charge related to two forged credit cards (including the one the Applicant had used in his spending-spree) that the police (who had been monitoring his activities some time) found on him when they stopped him in Telford Plaza.  The Applicant worked in conjunction with an accomplice, who was dealt with separately.  The two of them had engaged a taxi driver to take them from Park Lane to Telford Plaza and wait for them there so that they could store the goods obtained by use of the forged cards in the boot and make a quick get-away when needed.  Later, the Applicant told the police that he had purchased the two forged cards on the previous day in Shenzhen for HK$2,000 and was aware that they were forgeries.

5.  The Applicant, who is 32, has a chequered criminal record.  Since 1988 he has been before the courts on 10 previous occasions for offences as various as burglary, publishing obscene articles, unlawful sexual intercourse with a girl under 16, assaulting police officers, possessing offensive weapons in a public place and attending a meeting of a triad society.  In recent years he appears to have decided that his criminal métier lies in the field of copyright piracy for which, since 1998, he has acquired seven related convictions. 

Reasons for sentence

6.  Apart from saying that he was giving the Applicant a one-third discount to reflect his pleas of guilty, the Judge gave no reasons for the sentences he passed in the present case.  He should have done.  Further, given that none of the Applicant’s six offences was more serious than the others, he should have sentenced the Applicant to the same sentence for each offence and ordered that he serve them concurrently, rather than make the convoluted order that he serve his six sentences partly consecutively.  In R v. Kastercum (1972) 56 Cr App R 298, the English Court of Appeal, with which we respectfully agree, referred to such an approach as “a good working rule”. 

7.  In ordering that the Applicants’ sentences in the present case run consecutively to those imposed on him in the Eastern Magistrates’ Court, the Judge observed that the two sets of offences were separate and distinct and that the offences in the present case were committed whilst the Applicant was on police bail for the offences dealt with in the Magistrates’ Court.  He took account of the totality principle and decided that in view of the multiplicity of the offences, and their separate and distinct nature, an overall term of imprisonment of 42 months was appropriate.

Grounds of appeal

8.  Miss Munira Moosdeen, for the Applicant, advances two grounds of appeal in support of the application.  First, she says that the totality of the partly consecutive sentences passed in the present case was too high.  Secondly she says that the overall total sentence of 42 months imprisonment in respect of the present case and the Eastern Magistrates’ Court case was severe and manifestly excessive.

Discussion

9.  We do not agree with either argument.

10.  In HKSAR v. Cheung Ka Wo, Johnny [2002] 2 HKC 517, this Court (in the same composition) conducted a comprehensive review of the level of sentences for those who engage in credit card fraud.  The appellant (leave had been granted by the single judge) in Cheung Ka Wo had pleaded guilty to three charges of using a false instrument and one charge of obtaining property by deception.  The value of the goods obtained was less than $9,000.  The appellant had been sentenced to concurrent terms of two years’ imprisonment, which had been arrived at by giving him a one-third discount from a starting point sentence of three years to reflect his guilty pleas.

11.  In dismissing the appellant’s appeal against sentence we commented that judges and magistrates should pass severe sentences on those who engage in such crimes as a deterrent to others who may be minded to engage in them.  We pointed out that one justification - perhaps the most important justification - for this is that in this day and age the integrity of the credit card system is highly important and those who attempt to beat the system by fraudulent methods necessarily erode the confidence which people are entitled to place on this aspect of modern commercial life.  We held that the amount proved to have been lost by the fraudulent use of credit cards is not the only factor to be taken into account when sentencing the offender.  It is the potential for future losses in the future that could have been incurred by the offender’s continued use of a forged or stolen credit card which is the most important consideration.  

12.  In Cheung Ka Wo, we noted with approval that in HKSAR v. Hung Ping Wah (CACC241 & 488/1997), (unreported) this Court had considered a starting-point sentence of 4 years’ imprisonment taken in respect of an applicant who pleaded guilty to two charges of using a false instrument (by which he obtained goods worth $7,000) and one charge of possession of a forged instrument to be on “the high side” but “not manifestly excessive”, although we took into account also that the applicant there had 10 more false cards in his possession.  We also noted with approval that the same views were expressed in HKSAR v. Watt Siu Hung (CACC93/2001) (unreported) where the applicant admitted using two forged credit cards to obtain goods worth $3,000.

13.  With what we said in Cheung Ka Wo in mind, we have no doubt that the present Applicant’s total sentence of 27 month’s imprisonment for six offences of credit card fraud was not excessive.  The Applicant had obviously put some degree of planning into his enterprise.  He had gone to Shenzhen to buy the forged cards on the day before he used them.  Obviously he knew where to obtain them in Shenzhen.  He had engaged another man to assist him in his shopping-spree, and had engaged a taxi and its driver to stand by, both as a repository for the loot and as a getaway car. 

14.  So far as the Judge’s order in respect of the Applicant’s sentences in the Eastern Magistrates’ Court is concerned, it is always desirable, if this can be achieved, for one court to be seized of all outstanding criminal charges faced by an accused because that will enable one sentence to take a global view of the accused’s criminality and impose an appropriate sentence in the light of it.

15.  In R v. Bennet(1980) 2 Cr App R (S) 96, the English Court of Appeal said, that there was an obligation on judges, solicitors and counsel alike to do their level best to ensure that as far as possible all outstanding charges against an accused are dealt with in the same court, by the same judge upon a single occasion.  There is similarly such an obligation in this jurisdiction and we have expressed our disquiet to Miss Anthea Pang, for the Respondent, at the prosecution not having sought to consolidate both cases and prosecute them in the District Court.  She had very responsibly anticipated that this might be our concern and has undertaken to attempt to find out what went wrong in the present case and to see if there are any means by which the present system of consolidation can be improved.  It is an unfortunate feature of this failure to consolidate that we are now informed that there will be further appellate proceedings before a single judge of the Court of First Instance in respect of the proceedings in the Eastern Magistrates’ Court.  

16.  There can be no doubt that, although of a similar nature, the Applicant’s two sets of offences were separate and distinct, and, subject to the totality principle, the Judge was correct in ordering that he serve his sentences for those two sets of offences consecutively.  The fact that the Applicant committed the offences in present case whilst on bail for the offences dealt with in the Eastern Magistrates’ Court is an aggravating factor which the Judge was entitled to take into account when considering the total period for which the Applicant should be imprisoned.  It is also well-accepted sentencing principle that if an accused commits an offence whilst on bail for another, the resulting sentences should run consecutively, unless justice requires that they be partly concurrent.

17.  As to totality, given the fact that the Applicant was in no way deterred by his earlier arrest or the likely sentence he would receive when he chose to commit the offences in the present case, we do not believe that a total period of 42 months imprisonment for both sets of offences is manifestly excessive.

Decision

18.  The application for leave to appeal against sentence is refused.