HKSAR v. ATIENZA RICHARD MONTENEGRO

CACC 38/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 38 OF 2016

(ON APPEAL FROM DCCC NO. 1070 OF 2015)

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J U D G M E N T

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1. The applicant faced three charges of Theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charges 1 to 3), eight charges of Obtaining property by deception, contrary to section 17(1) of the Theft Ordinance (Charges 4 to 6 and 8 to 12), and one charge of Attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance and section 159G of the Crimes Ordinance, Cap 200 (Charge 7). He pleaded guilty in the District Court on 27 January 2016 to all charges before Deputy Judge Kathie Cheung and was sentenced to a total of 2 years’ imprisonment on the same day.

2. On 4 February 2016, the applicant filed a Notice of application for leave to appeal against his sentence.

The facts

Charge 1

3. The applicant admitted to the following facts. PW1, an expatriate living and working in Hong Kong, was the holder of an HSBC Credit Card (“the Credit Card”), which he had last used on 12 November 2014. At around 1 pm on 15 November 2014, PW1 was informed by HSBC that suspicious transactions had been made with the Credit Card at various locations that day. PW1 had no knowledge of these unauthorized transactions, and discovered that the Credit Card was missing from his wallet.

4. After the case was reported to the police, investigation of a sales slip involved in one of the suspicious transactions revealed the applicant’s fingerprint.  As a result, the applicant was arrested on 13 October 2015 as he was re-entering Hong Kong.

5. In a video recorded interview on 15 October 2015, the applicant admitted under caution that he had met and chatted with PW1 in a park and saw him drop the Credit Card.  Having left the park separately, the applicant later returned to the park and picked the card up.  These constituted the facts of Charge 1.

Charges 2 and 3

6. On 15 November 2014, the applicant used the Credit Card to make two online transactions of HK$100 each (Charges 2 and 3), without PW1’s consent or knowledge of the transactions.

Charges 4 - 6 and 8 - 12

7. The applicant then used the Credit Card for a number of purchases by misrepresenting himself as PW1, all on 15 November 2014.  These constituted Charges 4 to 6 and 8 to 12:

(a) At around 10:29 am, the applicant bought a pair of shoes valued at HK$1,199 (Charge 4);

(b) At around 10:47 am, the applicant purchased 2 bottles of perfume valued at HK$1,688 (Charge 5);

(c) At around 10:55 am, the applicant bought a wrist watch valued at HK$2,412 (Charge 6);

(d) At around 11:28 am, the applicant purchased two suitcases valued at HK$2,878 (Charge 8);

(e) At around 11:57 am, the applicant bought a ‘Play Station 4’ console, valued at HK$4,078.80 (Charge 9);

(f) At around 12:18 pm, the applicant purchased some cosmetics valued at HK$2,856.40 (Charge 10);

(g) At around 12:40 pm, the applicant purchased a wrist watch valued at HK$9,000 (Charge 11).  At 12:53 pm, the applicant bought another 3 watches from the same shop, valued at HK$4,260 (Charge 12).  The watch in Charge 11 was recovered from the applicant by the police when he was arrested on his arrival back in Hong Kong.

None of the above transactions was consented to by PW1.

Charge 7

8. At around 11:17 am on 15 November 2014, the applicant had also attempted to use the Credit Card to purchase a mobile telephone valued at HK$2,900. However, the salesperson refused to give him the mobile telephone after realising he was not the cardholder.  This constituted Charge 7.

Mitigation

9. In mitigation, it was submitted by counsel for the defence that the applicant’s acts were not pre-meditated, and he was not part of a fraud syndicate.  He had acted on the spur of the moment when he noticed that PW1 had dropped the Credit Card.  Moreover, the applicant’s previous convictions were not related to the present offences, and one of the watches had been recovered.  The total loss was slightly less than HK$20,000, when the watch, the subject-matter of Charge 11, was set off against the total loss.  The applicant was further willing to pay restitution of HK$10,000, which was indeed paid into court.  He was also said to be willing to arrange for the watch in Charge 6, and one of the suitcases in Charge 8, to be returned to their respective owners.

10. It was submitted that the applicant had cooperated with the police during the investigation and had made a full confession to all of the crimes committed.

11. It was also submitted that a starting point of 3 years’ imprisonment or less in cases of simple credit card fraud was also appropriate for this case.[1]

Reasons for Sentence

12. In sentencing, the judge noted that credit card offences were serious and must be deterred.  She also took into account the considerations laid down by the Court of Appeal in R v Chan Sui To and anor [1996] 2 HKCLR 128, which included the type of offence; the size and planning of the operation; any international dimension; and the role played by the defendant.  Being satisfied that there was no marked degree of planning or organization involved, nor any international element, and that the total value of the goods obtained was not high, the judge adopted a starting point of 3 years’ imprisonment in respect of Charges 4 to 12.  This was reduced to 2 years’ imprisonment to reflect the applicant’s guilty plea.

13. For Charge 1, the judge held that it was theft by finding, so that the appropriate starting point would be 9 months’ imprisonment.  This was reduced to 6 months’ imprisonment for his guilty plea.

14. For Charges 2 and 3, a starting point of 15 months’ imprisonment was adopted, which was reduced to 10 months’ imprisonment for the applicant’s pleas.

15. The judge gave a further discount of 3 months in respect of Charges 2 to 12, since the applicant had provided limited restitution.  Finally, taking into account the totality of the sentence, the judge considered 2 years’ imprisonment to be sufficient to reflect the criminality of the offences.  This she achieved by ordering the sentences on Charges 2 to 12 to run concurrently with each other, making 1 year and 9 months’ imprisonment in all, with 3 months of the sentence for Charge 1 to run consecutively to the sentences on Charges 2 to 12, making a total of 2 years’ imprisonment.

Grounds of Appeal

16. In his Form XI Notice of 4 February 2016, the applicant complained that he should have been given a greater discount for having paid HK$10,000 as restitution. He further said that he had heard of three cases, during his period of detention, in which sentences of 2 years’ imprisonment were given for similar offences.

17. The applicant also submitted that he was willing to surrender the watch in Charge 6 and the luggage in Charge 8.  He averred that the facts given to the police were not a full account of what had happened: that on the day PW1 had forced him to have oral sex and, if the applicant refused, PW1 would tell the police that the applicant had stolen from him; in essence, it was submitted that he did not simply pick up the credit card from an innocent person.[2]  Further, the applicant submitted that he did not really deceive the shop concerned with Charges 11 and 12 because it was apparent to the cashier from his appearance that he was not the owner of the card.[3]  Moreover, the transaction in Charge 7 had also been unsuccessful.

18. In a further letter to the court filed on 14 April 2016, the applicant has offered to pay the amount of HK$10,000 as further restitution.

The respondent’s submissions

19. Mr Derek Wong, on behalf of the respondent, submits that the judge had correctly adopted a starting point of 3 years’ imprisonment in respect of Charges 4 to 12.  Further, the starting point of 9 months’ imprisonment in respect of Charge 1 could not be considered manifestly excessive.

20. The judge had already taken into account the partial restitution made by the applicant when she gave a further discount of 3 months in respect of Charges 2 to 12.  Mr Wong says the judge was right to make a consecutive element of 3 months’ imprisonment for the theft of the Credit Card itself.  Accordingly, the overall sentence of 2 years’ imprisonment was appropriate.

21. In relation to the applicant’s promise to make further restitution, none had actually been made and the courts cannot act on empty promises alone.

22. As for the length of the sentence, the respondent submits that a proper sentence did not become excessive simply because other offenders in different cases have been sentenced more leniently.

23. As to the new factual allegations made by the applicant, the respondent submits that they did not reduce or absorb the applicant’s criminal liability.  Thus, there was no merit in the application and it should be dismissed.

Consideration

24. It should be stated at the outset that now is not the time to make serious imputations against PW1, the victim of the frauds.  First, if there were any truth in these accusations, and they were considered by the applicant’s lawyers to be relevant to mitigation, they could have been made in the court below when PW1 may have had a chance to respond and the allegations could have been tested, if necessary, at a Newton enquiry.  Secondly, these allegations do not sit well with what the applicant told the police during his video-recorded interview on the day of his arrest 11 months later, a short summary of which was set out in the Summary of Facts, which the applicant admitted at his plea (para 5 supra).  Thirdly, there was no hint of such a story during the mitigation advanced by the applicant’s counsel in the court below.  On the contrary, his counsel explained that the applicant had acted opportunistically and out of greed when he saw that PW1 had dropped the Credit Card in question.

25. The judge’s adoption of 3 years’ imprisonment resulted from a review of relevant authorities, including HKSAR v Tu I Lang (unrep., CACC 464/2006) and HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242.  I can see no reasonable argument that 3 years’ imprisonment as a starting point for Charges 4 to 12 was manifestly excessive.  Indeed, the applicant could not have complained if the starting point had been slightly higher in view of the number of times, in different shops, the Credit Card had been used, and the value of the property stolen.  In all, HK$28,572.20 worth of goods were stolen or payments made on 10 separate occasions (Charges 2 to 6 and 8 to 12), and the applicant attempted to obtain a further HK$2,900 (Charge 7).  Although every case, every defendant, and every set of personal circumstances or antecedents is different, I note that in Lam See Chung Stephen, the Court considered that a starting point of 3 years and 6 months’ imprisonment was appropriate for the theft of a credit card and its use on three occasions to obtain goods to the value of HK$15,240.[4]

26. It is true that the applicant before me did make actual restitution of HK$10,000 and was certainly entitled to some credit for so doing.  This the judge assessed at 3 months in respect of the sentences on Charges 2 to 12, resulting in an overall concurrent sentence of 21 months’ imprisonment on those charges.  However, for the charge of theft of the Credit Card (Charge 1), the judge ordered that 3 months of the sentence on Charge 1 should run consecutively to the sentences on the other charges, thus making 2 years’ imprisonment in all.

27. I was at one stage concerned that, when the judge said

“Taking into consideration the totality principle, I consider a total sentence of 2 years is sufficient to reflect the total criminality of the defendant”,[5]

she might have rendered her discount of 3 months’ imprisonment for partial restitution nugatory.  However, my concern is balanced by the fact that the overall sentence on Charges 4 to 12 was lower than it might have been, and that the judge was correct to make some element of the sentence for the actual theft of the Credit Card consecutive to the other sentences.

28. In the circumstances, I do not see any reasonably arguable grounds for complaint.  As for comparisons with sentences passed in other cases, these courts have said time and again that such comparisons, particularly with sentences at first instance, are of little assistance or value, particularly where the facts and circumstances of the offences and the offender will, as in credit card frauds, vary widely.

Conclusion

29. The application is, therefore, refused.  The applicant is duly advised of his right to renew his application for leave to appeal against sentence to the Court of Appeal, but is also warned of the consequences of so doing, which might include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

Post-script

30. As a post-script to my decision, following delivery of my judgment, it was brought to my attention and confirmed by officers of the Correctional Services Department that a parcel from the Philippines, believed to be one of the suitcases in Charge 8, was delivered to Siu Lam Correctional Institution recently but, understandably, the authorities there could not receive it.  What happened to the parcel and its contents thereafter is unclear but it is believed they may have been returned to the Philippines.  It is also unknown whether the parcel contained the watch referred to in Charge 6.

31. Whatever the position, I instructed Mr Wong to ensure that the applicant or his family should be given the right information as to where these items might be sent and received.  The same goes for the further restitution promised by the applicant.  Whether they will make any difference to the sentence, if duly received in time, will be a matter for the Court of Appeal to determine, should this application for leave be renewed.

32. As things presently stand, however, no further restitution of property or money has actually been made and this further information does not affect my decision today.

[1] Defence counsel cited in support HKSAR v Lam See Chung, Stephen [ 2013] 5 HKLRD 242; HKSAR v Tu I Lang (unrep., CACC 464/2006, 18 May 2007).

[2] Form XI, para 6.

[3] Form XI, para 7

[4] HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, at para’s 5 and 46.

[5] Appeal Bundle, page 26B-C.