LEE CHI CHUEN v. R.

IN THE COURT OF APPEAL

1993, No.673
(Criminal)

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J U D G M E N T

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Wong. J. (giving the judgment of the Court):

1. The applicant, who was D1 in the court below, was charged with conspiracy to defraud together with four other persons. Three of them who lent their credit cards to D1 and D2 pleaded guilty and received sentences ranging from six months to two years imprisonment. The applicant and D2 pleaded not guilty and were convicted after trial in the District Court before Deputy Judge Meredith. He sentenced each of them to imprisonment for a term of three years. The applicant now seeks leave to appeal against both conviction and sentence.

2. The particulars of offence in the re-amended charge sheet read as follows :-

"LEE Chi-chuen, Ricky and LO Ka-fai, Danny, between the 1st day of December 1990 and the 31st day of July 1991, in Hong Kong, conspired together with other person or persons unknown to defraud the bank or banks in Hong Kong of the credit card accounts of the said LO Ka-fai, Danny, FONG Man-piu, AUYEUNG Chi-ho, FUNG Chak-por, LEUNG Yiu-fai and WAN Wai-leung by dishonestly :-

(I) the said LO Ka-fai, Danny, FONG Man-piu, AUYEUNG Chi-ho, FUNG Chak-por, LEUNG Yiu-fai and WAN Wai-leung provided to either the said LEE Chi-chuen, Ricky, or LO Ka-fai, Danny, or both their respective credit cards for use by them as the purported authorised holder; and

(ii) the said LO Ka-fai, Danny, FONG Man-piu, AUYEUNG Chi-ho, FUNG Chak-por, LEUNG Yiu-fai and WAN Wai-leung falsely represented to officers of the said bank in Hong Kong of their respective credit card accounts that the usage of their credit card was unknown to and unauthorised by them."

3. The scheme in this case involved the applicant together with others using credit cards of other people to make purchases of goods, mostly clothes and some laser discs, in Japan.

4. Between December 1990 and May 1991, the applicant travelled to Japan on six occasions and stayed there between four to six days each time. He was accompanied by D2 during the second to the fifth trips. There were a total of 534 transactions where credit cards were used to buy goods to the value of over $1.2 million, which the issuing banks of the credit cards were obliged to pay and did pay.

5. Persons who lent their credit cards to D1 or D2 were each paid between $7,000 to $10,000 as rewards. They were told to lie and did lie to the bank when they were contacted by the bank about these transactions that they had not made nor authorised the transactions; that they had not been in Japan at the time of the transactions and that their credit cards had been in their possession all the time.

6. The applicant raised a number of matters in his home-made grounds of appeal.

7. None of these matters caused us any concern. We are satisfied that each and every one of them had been carefully considered by the deputy judge. There was ample evidence to support the conviction: both direct evidence from PW2, FONG Man-piu and circumstantial evidence of a most cogent nature which, if accepted by the deputy judge, would establish a case against the applicant beyond reasonable doubt.

8. We see no merit in the application for leave to appeal against conviction and it is accordingly dismissed. We turn now to sentence. The complaint of the applicant is not so much that the sentence imposed on him is too severe but rather it is the disparity between his sentence and the sentences imposed on those defendants who pleaded guilty.

9. The different role played by each defendant and the different sentence imposed on the defendants are helpfully set out in the Reasons for Sentence. At page 49 of the appeal bundle, the deputy judge said,

" Different Judges had sentenced different Defendants prior to this trial as follows.

D3 had lent his card to D2 for the second trip and had accompanied D1 and D2 to Japan on the 3rd and 4th trips and had helped to carry goods away from department stores. He pleaded guilty and was sentenced to 2 years imprisonment.

D4 had lent his card once to D3. He pleaded guilty on the same occasion as D3. He was sentenced to 15 months.

Another Defendant Leung Yiu-fai lent his card to D2 once. He pleaded not guilty on a different occasion and was convicted after trial. He was sentenced to 15 months.

But D5 was equally culpable as D4, the said Leung Yiu-fai."

10. He continued in paragraph 9 at page 52:

"D5 had given valuable and credible evidence against D1 and D2. So he had a discount for his good character, his plea of guilty and his evidence."

11. The deputy judge also correctly concluded that the applicant was the mastermind of the scheme and the main culprit, having made all six trips to Japan. This was a premeditated and deliberate fraud, committed over a period of six months. The amount involved was large totalling more than $1.2 million.

12. It should be noted that D2 was also sentenced to 3 years' imprisonment.

13. In our judgment, the different sentences imposed on the applicant and the other defendants are plainly justified, having regard to the role each of them played and the circumstances of each case. There is no merit in this complaint. The sentence of 3 years' imprisonment is neither wrong in principle nor manifestly excessive. The application for leave to appeal against sentence is also dismissed.