ATTORNEY GENERAL v. CHAN PIU SANG and Another

HEADNOTE

Sentence - Crimes Ordinance - forged credit cards - possession and use

IN THE COURT OF APPEAL

1993, No. 16
Application for Review

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. The respondents, Chan Piu Sang and Chung Kwon On, who were respectively the 1st and 2nd defendants at trial, appeared before His Honour Judge Britton on a charge sheet which contained 13 charges. Upon the 1st defendant's plea of guilty to the 1st and 3rd charges and the 2nd defendant's plea of guilty to the 2nd and the 13th charges, the Crown offered no evidence on the remaining charges.

3. The trial judge then proceeded to sentence. They were sentenced respectively on the 1st charge and the 1st defendant: 9 months' imprisonment; on the 3rd charge and the 1st defendant: 12 months' imprisonment, which sentences were directed to run consecutively giving a totality of 21 months' imprisonment. Chung Kwok On, the 2nd defendant was sentenced to a period of 6 months' imprisonment on each of the charges which related to him. Those sentences were set to run concurrently.

4. The Attorney General, by leave granted on 29th December 1993, applies to this court to review those sentences pursuant to the provisions of section 81A of the Criminal Procedure Ordinance, Cap.221 on the basis that the sentences imposed were either wrong in principle or manifestly inadequate.

5. The 1st charge in respect of the 1st defendant, now the 1st respondent, was that he, on 19th May 1992, in Oliver's Delicatessen possessed two forged credit cards which he knew to be forged and with intent to defraud. This was an offence contrary to the old section 76(2) of the Crimes Ordinance Cap.200. We say "old" to indicate that its provision were in force before the subsequent amendment of that Ordinance in June of 1992. The maximum term of imprisonment was one of 7 years.

6. The 3rd charge in respect of the 1st respondent was that on 21st July 1992 he possessed five forged credit cards which he knew to be false. He had posted them to an international address and it was alleged that he had the intention that

"he or another use them to induce somebody to accept them as genuine and by reason of so accepting them to do some act to that person's or another person's prejudice."

This is an offence under the new section 75(1) of the Crimes Ordinance which carries a maximum sentence of imprisonment for 14 years.

7. The 2nd charge against the 2nd respondent was also the possession of a forged credit card with intent to defraud - one card - and was brought under the old section 76(2). The 13th charge was attempted obtaining property by deception contrary to section 17(1) of the Theft Ordinance. That carried a maximum sentence of imprisonment of 10 years.

8. On 19th May both of the respondents were found in Oliver's Delicatessen. The 2nd respondent had attempted to obtain a quantity of brandy to the value of HK$12,872.60 by the use of a forged credit card. The 1st respondent was searched and there were found in his possession the two credit cards referred to in the 1st charge.

9. The credit card used by the 2nd respondent was the subject of the 2nd charge.

10. On 21st July 1992 while on bail in respect of the 1st charge, the 1st respondent committed the offence particularized in the 3rd charge.

11. The trial judge approached the sentencing exercise in this way. He first considered an overall sentence which he thought to be 3 years as appropriate to the offences committed by the 1st respondent. He then went on to, as he put it, "take an overall view" on sentence. Taking into account the mitigation, he thought a period of 21 months overall to be correct. He then apportioned that sentence as we have earlier indicated as between the two charges.

12. With respect, we think this was an inaccurate approach. He should have considered what was the appropriate individual sentence to impose on each of the charges and then viewed the totality producing the ultimate sentence by giving consideration to that totality and to such discount as he would have granted for mitigation, in particular the plea of guilty. He was, however, correct to consider that the sentences should be consecutive one to the other.

13. This court has emphasized on more than one occasions the serious nature of this type of offence. As was said by Macdougall JA (as he then was) in The Queen v. Wong Fu Keung, Criminal Appeal No.5 of 1991 (unreported) at page 5:

"It is a notorious fact that the illegal use of credit cards has become widespread. Those who are engaged in this type of activity can expect to be dealt with severely by the courts."

14. As my brother Litton JA said in The Queen v. Kwai Ying Ho, Criminal Appeal No.527 of 1992 (unreported) at page 5:

"Credit card frauds have in recent years been an insidious poison in the community. It affects a large number of citizens. It erodes the credit card system and damages Hong Kong's standing in the international community."

While those latter words were applied to charges of conspiracy, we would, with respect, adopt them in this court in relation to the generality of credit card frauds.

15. While the sentencing judge had expressed himself as being of the view that credit card fraud is not something which the courts would likely tolerate, we do not think the seriousness of these offences, or their prevalence, was properly reflected in the sentences he passed.

16. Mr. Schapel, who appears in this court for the Attorney General, has urged us to take the view that the criminality reflected in the use of forged credit cards should be equated with the criminality to be reflected in the use of forged currency. We accept that sentences passed in relation to matters of forged currency should be borne in mind when considering offences of the nature here; but we do not consider that the same level of sentencing should apply to both. There is an extra element in relation to forged currency in that ordinary members of the public may, at a later stage, be deceived by its use which is not present in credit card frauds.

17. The main mitigation in respect of both of the respondents was their pleas of guilty. The 1st respondent had a previous criminal record though not of a similar nature to the offences here. The 2nd respondent had a completely clear record. Matters of mitigation relevant to his family circumstances were drawn to the trial judge's attention. Of these the judge said:

"It is always the families that suffer. But you cannot be allowed to hide behind them. You should have thought about what would happen to them before you indulged in crime.

18. The circumstances which were drawn to the attention of the trial judge were not, in our view, circumstances of such an exceptional nature as would warrant a reduction in the sentence to be passed.

19. As we have indicated, we consider these sentences to have been inappropriate. They were in our view manifestly inadequate to reflect the criminality of the respondents. We would thought that an appropriate sentence on the 1st respondent on the 1st charge, after trial, would have been one of 1½ years' imprisonment and on the 3rd charge one of 4 years' imprisonment. Looking at the totality, this would have been too high. Allowing for the discount for the plea, we consider that a totality of 4 years overall would have been proper. To effect this, we would set aside the sentence on the 1st charge and substitute for it a sentence of 1 years' imprisonment and we would set aside the sentence on the 3rd charge and substitute for it a sentence of 3 years' imprisonment. We would direct that those sentences run consecutively giving a totality of 4 years' imprisonment.

20. In respect of the 2nd respondent on the 2nd charge, we consider that a period of 1½ years after trial would have been the proper starting point, and on the 13th charge a sentence of 2 1/2 years after trial would have been appropriate. Again, looking at the totality, 4 years is too high. Considering that totality, the discount to be allowed for the plea, his entirely clear record and, further, that the 2nd respondent is very close to release from the sentences actually imposed upon him, in our judgment 2 years' imprisonment overall would be proper. To effect this, on the 2nd charge the sentence imposed of 6 months is set aside and is substituted by a sentence of 1 years' imprisonment. On the 13th charge, the sentence of 6 months is set aside and a sentence of 2 years' imprisonment is substituted for it. We think these sentences should properly, and as they were ordered by the trial judge, be set to run concurrently giving a totality of 2 years' imprisonment.

21. To the extent indicated, we allow the review application of the Attorney General.