HKSAR v. REYES EDWARD S

CACC 219/2018

[2019] HKCA 381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 219 OF 2018

(ON APPEAL FROM DCCC NO 184 OF 2018)

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J U D G M E N T

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1.  The applicant was one of the two defendants who pleaded guilty to three credit card fraud offences (obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210) for which he was sentenced to 22 months’ imprisonment. He now applies for leave to appeal against his sentence.

2.  The applicant’s co-defendant stole a credit card from the place where they both worked, which the co-defendant later used to buy a computer notebook.  He contacted the applicant and together they used the credit card on three further occasions at different shops to purchase a computer notebook in the sum of $3,750 (Charge 3), a computer notebook in the sum of $3,330 (Charge 4) and a guitar together with an effects unit in the sum of $9,435 (Charge 5).

3.  Applying the sentencing guideline in HKSAR v Tu I Lang CACC 464/2006 (18 May 2007, unreported), the judge adopted a starting point of 2 years and 6 months’ imprisonment on each of the deception charges (Charges 3, 4 and 5), which he reduced by one third for the applicant’s guilty plea to 20 months’ imprisonment.  He ordered that one month from each of Charges 4 and 5 run consecutively to Charge 3, thus resulting in a total sentence of 22 months’ imprisonment.

4.  The applicant accepts that the judge followed the guidelines for sentencing for this type of offence but is asking for a lenient sentence because this was a momentary lapse of judgement on his part. He points out that he had a letter from his employer who spoke favourably of him but his counsel did not submit it to the judge.  Whilst it would have been preferable for counsel to have done so, I agree with the respondent’s submission that it would not have affected the sentence imposed on him.  In any event, even now such letter has not been submitted to this Court.

5.  The applicant together with his co-defendant went to three different shops and used the stolen credit card on those three occasions to fraudulently buy goods.  In respect of Charge 3, the co-defendant falsely represented that he was the genuine holder of the credit card, while in respect of Charges 4 and 5, it was the applicant who did so.

6.  There is no basis to interfere with the sentence that was imposed by the judge in light of all the circumstances.

7.  The applicant’s application for leave to appeal against sentence is therefore refused.

8.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.