HKSAR v. CHOW FU KEUNG

CACC 525/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 525 OF 2000

(ON APPEAL FROM DCCC 904/2000)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1 This is an appeal against sentence, leave having been granted by the single judge.

2 The appellant pleaded guilty in the District Court to one charge of conspiracy to defraud. It was alleged by the charge that he and a person unknown conspired to defraud a number of banks and credit cards companies or centres, to grant credit arrangements in the form of credit card accounts, and did so by a number of devices, in particular by making false representations as to his address and occupation; by submitting photocopies of a false bank passbook, and of bank statements, by which to evidence, untruthfully, receipt of salary payments; and by submitting bogus employment letters from a company. A total of 13 credit card companies were thus subjected to false applications made by the applicant. He opened a bank account at Citibank, and created a shell company to assist in the scheme of deception. In the event, four cards were obtained and were used, and a total of about $138,850 was outstanding on these cards at the date of the applicant's arrest on 28 July 2000.

3 His account to the police after his arrest was that a friend called Wu had suggested the scheme to him, had assisted in or organised the devices necessary to effect the scheme, for example, by taking him to Citibank to open an account, and by providing the false address that was used on the applications for some of them; and that he was asked by Wu to set up the company. According to the appellant, the deal was that the appellant would retain 20% of the sums withdrawn by use of such credit cards as were obtained, and Wu would retain the balance.

4 The appellant asserted today that his role was not major, and that he offended only in order to obtain sums to fund his drug activities. That is no mitigation. Nor do we accept that his role was not a key role.

5 He was at the date of the conviction aged 33 years, and is not a person of previous good character. He has a string of convictions for possession of dangerous drugs, and for unlawful possession of dutiable goods, and in November 2000 was sentenced to a term of 17 months' imprisonment, a total which comprised sentences for trafficking in dangerous drugs and for keeping a divan, and the activation of a suspended sentence.

6 The judge, HH Judge Wong, took the view that the present offence, which spanned about four months, was an elaborate scheme, and he took a starting point of six years' imprisonment. Giving credit for the plea of guilty, he sentenced the appellant to a term of four years' imprisonment, and ordered that term to start running after the appellant had served six months of the earlier sentence. He said that the result was that the full term the appellant would thus be serving for both offences was four and a half years' imprisonment. Whether he appreciated that in terms of remission for good conduct the result would reflect a term a couple of months in excess of four and a half years one knows not, although this is not the gravamen of this appeal. In any event, we think that the appellant is extremely fortunate in that these were quite separate offences, and wholly consecutive sentences were warranted.

7 In our judgment, the starting point of six years' imprisonment for the credit card offences was in the circumstances of this case too high. In this court's recent decision in Chan Yuk Kwan CACC 26 of 2001, we reviewed a number of authorities and, in particular, the analysis of earlier cases in Chan Sui-to [1996] 2 HKCLR 128. Whilst the case now before us was serious, as are all credit card frauds which constitute a systematic course of conduct over a number of months and involve a relatively large sum of money, the case was not one involving the manufacture of cards; nor did it have an international aspect; nor did it involve the running of a syndicate; and it cannot be said to have been an unusually sophisticated operation. The magnitude of the case is little different from that in Lai Chong-ning Cr App No. 729 of 1996 to which our judgment in Chan Yuk Kwan also refers. In our opinion, this case warranted a starting point of five years' imprisonment. Given the applicant's plea of guilty, and there is no other mitigation, the sentence which ought to have been imposed was one of three years and four months' imprisonment. Accordingly, we allow the appeal, set aside the sentence imposed by the judge, and substitute for it a sentence of three years and four months' imprisonment. We maintain the order of the sentencing judge that the sentence will start after six months of the sentence imposed on 23 November 2000 has been served; although the appellant should consider himself lucky that we have not altered that aspect of the order to his disadvantage.