HKSAR v. SUEN TAT YEUNG, RICKY

HCMA709/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.709 OF 2006

(ON APPEAL FROM TWCC 1209 OF 2006)

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J U D G M E N T

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1. The appellant pleaded guilty to one charge of “Using a False Instrument”, contrary to section 73 of the Crimes Ordinance Cap. 200. He was sentenced to 16 months imprisonment and he appealed against the sentence.

2. The hearing was conducted in English before an English-speaking magistrate and the appellant was represented by an English-speaking duty lawyer. As the appellant appeared without legal representation before me, I conducted the hearing in Chinese. After hearing, I dismissed the appeal and gave my reasons orally in Chinese. I now reduced those reasons in writing.

Admitted facts

3. The admitted facts disclosed that the appellant had gone to a shop in Disneyland and tried to purchase a pair of gold bracelets worth $19,800 with a credit card. During the transaction the credit card was found to be a forged one and the police was called. The appellant was caught by a security guard after a chase. He was subsequently arrested by the police.

Mitigation put forward

4. In mitigation the duty lawyer informed the learned magistrate the personal circumstances of the appellant: including the appellant’s divorce from his wife, his father having died from cancer and his mother suffering from brain tumour, and so on. It was submitted on the appellant’s behalf that he had stupidly taken the advice of friends and used the forged credit card to obtain money, and that the appellant’s share was 15% of the proceeds.

Reasons for sentence

5. The learned magistrate considered the case of HKSAR v Chen Wing Hong CACC 40/2005, in which the case of HKSAR v Cheung Ka Wo, Johnny was mentioned. In the latter the Court of Appeal conducted a comprehensive review of the level of sentences for those engaged in credit card fraud.

6. The learned magistrate took the following into account when coming to his decision to a 24-month starting point:

(a)   the appellant was charged with one offence of using a forged credit card but there was a risk of future use;

(b)  the appellant was involved in the crime with someone who had given him the credit card. That person also took the lion share of the proceeds of crime;

(c)  the value of the transaction was relatively small; and

(d)  it was the first time the defendant committed an offence involving dishonesty.

Grounds of appeal

7. When the appeal was first heard in September this year, the appellant informed me that there was a misunderstanding between him and the English-speaking duty lawyer when mitigation was advanced. The appellant submitted that the said lawyer mistakenly treated the 15% commission he obtained from working in the real estate business as the profits from committing the present offence. The appellant claimed that he had “picked up the credit card on a street inside Disneyland” and committed the offence due to greed. The duty lawyer’s submission to the learned magistrate that the appellant had “stupidly taken advice from one of his friends” to make “easy” money was incorrect. The appellant also submitted the circumstances of his offence was very different from the cases mentioned by the learned magistrate in his Reasons for Sentence.

8. In view of such an allegation, I adjourned the matter so that the appellant could provide the instructions he has given to the Duty Lawyer Scheme in relation to the matter. Mr. David Leung, Senior Government Counsel for the Respondent, has very kindly rendered assistance to the un-represented appellant by writing to the Duty Lawyer Scheme to explain the situation.

9. When the hearing resumed in November this year, the appellant confirmed that he waived his legal privilege and handed a copy of his statement to the Duty Lawyer Scheme for my perusal.

10. The statement was in English and taken by a Ms. Sammy Chan. There is no need to repeat what was said in that statement. Suffice it to say that the contents not only did not support the appellant’s version, it actually supports what the duty lawyer has said in mitigation!

11. As I have to deal with another matter, I stood the case down for the appellant to consider if he would further pursue that line of appeal – bearing in mind that he has, according to him, given his instructions to Ms. Sammy Chan in Cantonese and that what Ms. Chan had written down in English was drastically different from what the appellant has told me.

12. When I resumed hearing the appellant informed me that he no longer wished to pursue that line of appeal. After going through the learned magistrate’s Reasons for Sentence with him, the appellant indicated that he could not say the learned magistrate, in passing the sentence, was either wrong in principle, or that the sentence was manifestly excessive.

Respondent’s response

13. Mr. David Leung referred to the cases of R v Chan Sui To [1996] 2 HKCLR 128, HKSAR v Ng Swee Thiam & others [2000] 1 HKLRD 722, HKSAR v Cheng Sui Yin, CACC 468/2005, HKSAR v Shum Chung Wai [2002] 2 HKLRD 81, and the two cases considered by the learned magistrate, i.e. Cheung Ka Wo-Johnny and Chen Wing Hong and submitted that while a starting point of 24 months might be on the high side, it was neither wrong in principle nor manifestly excessive.

Judgment

14. Having considered the circumstances of the offence and the authorities cited, the starting point adopted by the learned magistrate was neither wrong in principle nor manifestly excessive. I dismissed the appeal.