HKSAR v. CHAN HO YIN

CACC000257/2000

CACC 257/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 257 OF 2000

(ON APPEAL FROM DCCC 423/2000)

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J U D G M E N T

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

1. On 8 June 2000, the applicant pleaded guilty before H H Judge Toh in the District Court to one charge of attempting to obtain property by deception (the 1st charge), two charges of theft (the 2nd and 4th charges), three charges of obtaining property by deception (the 3rd, 5th and 6th charges). These offences were committed between October 1999 and February 2000. The Judge imposed a sentence of 12 months imprisonment on the 1st charge, 4 months each on the 2nd and 4th charges, 12 months each on the 3rd, 5th and 6th charges. All sentences are consecutive, making a total sentence of 4 years and 8 months. At the time of sentence, the applicant was serving a sentence of 28 months imprisonment imposed in March 2000 for offences of theft, obtaining by deception and offences relating to identity cards, which he committed between August 1999 and October 1999. The Judge ordered that one year of the sentence of 4 years and 8 months imprisonment to run concurrently with the applicant's current sentence of 28 months. Thus, for all the offences the applicant committed between August 1999 and February, 2000, the overall total sentence the applicant was to serve was 6 years.

2. The applicant applies for leave to appeal against sentence. The main ground is the Judge failed to have regard to the principle of totality when reaching the total sentence of 4 years 8 months. The Judge also erred in failing to adjust the aggregate sentence having regard to the sentence the applicant was already serving.

3. The admitted facts may be summarised as follows:

4. The applicant agreed to buy PW1's Nissan Skyline GP7775 and to deposit the purchase price in the account of PW1's wife. On 4 October 1999, the applicant showed PW1 a pay-in-slip showing a cheque in the amount of the purchase price was deposited in the account. Believing that the purchase money was paid, on 4 October 1999 PW1 transferred to the applicant the ownership of the car but he retained the registration number GP7775. Registration documents with a new registration number JF5254 and in the name of the applicant were issued by the Transport Department. In the meantime, PW1 found that the applicant's cheque was dishonoured and he asked to be paid in cash. When the applicant refused to pay cash, PW1 retained the registration documents. The applicant then went to the Transport Department and reported loss of the registration documents and replacements were issued on the strength that he was the registered owner on file. In the meantime, the applicant stole a Nissan Skyline from PW2. He replaced the lock on this car and changed the number plate and chassis number of the car to that of JF5254.

5. The applicant then sold the stolen car, now bearing the number JF5254 to PW3 for $17,000. He gave PW3 the replacement documents on completion of sale. In the meantime, he reported to the Transport Department loss of the replacement documents. PW3 was therefore unable to have the car transferred to his ownership. He reported the matter to the police.

6. In the meantime, the applicant using the same method approached PW16 to buy his Toyota. He also agreed to deposit the purchase price in the account of PW16's wife. They met on 27 October 1999 in the Transport Department to complete the sale and transfer of ownership. The applicant gave a photocopy of a pay-in-slip purporting to show the purchase price had been deposited into PW16's wife's account. While PW16 was making the application for transfer, the applicant asked to test the car again. PW16 gave him the keys and the applicant disappeared with the car. PW16 later found that no money was deposited in his wife's account.

7. Again on 6 November 1999, the applicant gave to PW19 the seller of a BMW a deposit slip purporting to show a deposit of the purchase price had been made. He persuaded PW19 to park the car outside her yard. In fact, no deposit had been made. The car was later found missing. On the same day, the missing BMW was found in Pat Heung and the applicant was arrested when he was getting into the driver's seat of the car. On 25 November 1999, he was arrested for the earlier other offences. He admitted that he was unable to honour the cheque he gave to PW1 when he drew it. The applicant was released on bail.

8. On 6 March 2000, the applicant was found on the front passenger seat of a Honda car which was reported stolen on 23 January 2000 when it was intercepted by PC34908. The applicant admitted to the officer that he had stolen the Honda car and the car was then being tested by a potential buyer.

9. As may be seen from these facts, the applicant had engaged himself in, what the Judge had put it in her reasons for sentence, "a very sophisticated scheme hatched by the applicant". The Judge also recognised that it was not the first time the applicant had engaged himself in such deceptions.

10. The applicant does not complain about the individual sentences imposed by the Judge on the separate offences. Ms Moosdeen counsel for the applicant submits that the aggregate sentence of more than 4 years for the six offences is excessive, having regard to the owner of the car in the 1st charge suffered no loss and the cars involved in the 5th and 6th charges were recovered. She also submits that the 2nd and 3rd charges are connected, suggesting their sentences should have been concurrent.

11. Ms Moosdeen further submits the Judge had failed to consider the sentence of 4 years and 8 months would together with the 28 months the applicant was then serving convert the overall aggregate sentence to a long term sentence.

12. Ms Moosdeen relies on R v TONG Hoi-fung [1988] 1 HKLR 610, 611 the headnote of which reads as follows:

13. She also refers to R v NG Chun-keung [1993] 2 HKC 171, 173 (where R v Millen [1980] 2 Cr App R (S) 357 was cited) where it was said that "a court dealing with an accused who had been recently been sentenced to imprisonment by another court for other offences must have regard to the totality of all the sentences of imprisonment to which the accused will become subject." The proposition is that the court must adjust its own sentence to achieve a combined sentence which is fair. Other authorities to which Ms Moosdeen has referred repeat this same principle. We agree that this must be the principle.

14. The question to consider is if all the offences committed by the applicant over the period from August 1999 to February 2000 had been heard together, looking at the totality of the case, is the overall sentence of 6 years imprisonment manifestly excessive. In our opinion, this was a sophisticated scheme of deception and thefts perpetrated by the applicant. The applicant committed a series of similar offences within a short period of time, some of which were committed while he was on bail. The Judge was entitled to take a serious view of the matter. The starting point of 18 months for the deception offences and 6 months for the theft offences are not in any way excessive. The total sentence of 4 years and 8 months cannot be criticised. Having said that, the 6 years overall sentence after plea, the starting point of which would have been 9 years after trial for all these offences, is disproportionate to the criminality of these cases and is manifestly excessive. We consider a sentence of 5 years overall would adequately reflect the total criminality of the offences in all the circumstances.

15. This sentence can be achieved if 2 years of the sentence of 4 years and 8 months is made to run concurrently with the sentence of 28 months the applicant was serving at the time of sentence. The application for leave to appeal against sentence is granted and the application is treated as the appeal. We allow the appeal to that extent and order that 2 years in substitution of 1 year, of the total sentence of 4 year and 8 months to run concurrently with the sentence of 28 months.

Representation: