HKSAR v. LAI WAI YEE

CACC 107/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 107 OF 2003

(ON APPEAL FROM DCCC 1023 OF 2002)

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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):

1. On 28 February 2003, the Applicant was sentenced in the District Court by Deputy Judge McNair to a total of twenty-eight months' imprisonment for four offences of obtaining a pecuniary advantage by deception, four offences of obtaining property by deception and ten offences of theft, having pleaded guilty on 16 December 2002 to all these charges. She now seeks to renew her application for leave to appeal against sentence which was refused by the single judge on 6 May 2003.

2. In short, the Applicant, aged twenty-four, took a friend's identity card which she utilised to open a bank savings account. Using that account and her friend's identity card, she then obtained four credit cards. These cards were subsequently used to make purchases and to withdraw cash.

3. When she was arrested on 6 July 2001, the Applicant immediately confessed to all the offences. In all, she had obtained by that stage cash totalling $35,700 and an amount of property the value of which is unknown. A very small sum in compensation was repaid shortly thereafter, namely $1,310.

4. The judge ultimately took a starting point of two years' imprisonment for each offence which he reduced to sixteen months to reflect the pleas of guilty. He also considered that a global overall sentence of forty-two months, reduced to twenty-eight months' imprisonment, was appropriate in totality. The judge described himself, rightly in our view, as "erring on the side of leniency".

5. The Applicant had gone into this solo fraudulent enterprise with her eyes wide open. She had not only instigated it, she was well aware of the likely consequences if she was caught.

6. The Applicant's grounds of appeal remind us that she has a young family, that she would be content to undergo community service and that she would like to compensate the banks.

7. In a very late attempt to ameliorate her position, we understand from correspondence we have been shown today that the Applicant's husband, during the course of yesterday afternoon, reimbursed $20,000 as compensation towards the losses in this case. This leaves a total of $14,390 of the cash she obtained outstanding. Whilst we do not ignore the fact that there has been a payment of some restitution, it has to be noted that this was made not only after trial but after the leave of the single judge had been refused.

8. Clearly this payment is not a reflection of any remorse but some credit must, of course, be given to it.

9. Accordingly, in the light of this development, we shall give leave. Treating the hearing as the appeal, we do not propose to interfere with any of the individual sentences imposed by the judge. We shall, however, reduce the order which was made that twelve months on charge 2 should be served consecutively to other terms of sixteen months' imprisonment which were imposed at the same time. In place of that order, we substitute an order that eight months only will be served consecutively. This will result in the sentence to be served being reduced by four months to twenty-four months' imprisonment. To this extent, the appeal is allowed.