HKSAR v. CHOI PING-CHIU

CACC 62/2021

[2021] HKCA 1387

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 62 OF 2021

(ON APPEAL FROM DCCC 526 of 2020)

____________________

____________________

________________

R E A S O N S  F O R  J U D G M E N T

________________

Background

1.  The applicant was convicted on his own plea of one charge of obtaining property by deception[1] (Charge 2), one charge of theft[2] (Charge 3); and one charge of possession of offensive weapons in a public place[3] (Charge 4).  On 10 March 2021, District Judge Katherine Lo (“the judge”) sentenced the applicant to an overall term of 40 months’ imprisonment and, upon the application of the prosecution, ordered Charges 1 and 5[4] to be left on the court file and not to be proceeded with without the leave of the court.  

2.  By way of a Notice of application for leave to appeal filed on 24 March 2021, the applicant sought leave to appeal against his sentence which application I refused at the end of the hearing.  Below are my reasons. 

Facts Admitted

3.  The applicant was intercepted by the police on 21 February 2020 at about 1121 hours as he was seen acting furtively in a pawnshop in Mong Kok.  Upon search, the applicant was found to have two knives, the handles of which were wrapped with tissue paper.  Under caution, the applicant claimed that the knives were for his own defence as he was being pursued by his creditors. (Charge 4) 

4.  During the search, the police also discovered that the applicant had in his possession a wallet containing a Mr H F Au’s Hong Kong Identity Card and, when he was taken back to the police station, a smartphone belonging to Mr Au was found. 

5.  According to Mr Au, he was drunk and sat on the rear staircase of a building in Mong Kok that morning. He recalled that a man sat beside him for less than one minute and he later noticed that his wallet, which had in it HK$700 cash, his Hong Kong Identity Card, two ATM cards and a credit card, was gone.  His bag was also cut open with his smartphone valued at about HK$3,000 missing. (Charge 2) 

6.  Upon arrest, the applicant was identified to have committed a credit card fraud in December 2018. In that case, a credit card which belonged to one Ms J X Liang was activated on 22 December 2018 and a purchase of an iPhone (HK$10,710) was made at a shop. CCTV of the shop captured the applicant presenting the credit card and making the unauthorised transaction. (Charge 3) 

Mitigation

7.  The applicant was 43 years old at the time of sentence.  He was single, and was born in Hong Kong. He was sentenced on 33 previous convictions involving 67 charges, of which 40 related to dishonest conduct, 2 were the same offence as that of Charge 2, and 30 were thefts, plus one attempted theft.  The applicant was last sentenced to 9 months’ imprisonment for theft on 3 July 2019 and was discharged on 9 November 2019. 

8.  In relation to Charge 2, it was said that as Ms Liang’s brother owed the applicant a sum of HK$5,000, they therefore agreed to have the credit card activated and for it to be handed over to the applicant for use.  Should successful purchases be made, they would sell the products obtained and divide the cash received equally.  For the iPhone in question, the applicant claimed that it had been resold for HK$10,000.  The applicant took HK$5,000 and kept the remaining HK$5,000 which was said to be the repayment of the debt Ms Liang’s brother owed him. 

9.  As for Charge 3, it was submitted that the applicant was merely an opportunist.  The stolen properties were recovered and the applicant made full restitution of the HK$700 cash to Mr Au. 

10.  Regarding Charge 4, it was emphasised that the applicant merely kept the knives to prevent his creditors from using violence on him. 

Reasons for Sentence

11.  The judge, in her Reasons for Sentence, said the applicant’s commission of Charge 2 was premeditated as according to the applicant, he had agreed beforehand with Ms Liang’s brother as to how they would try making purchases with the credit card and how to divide the proceeds.  Further, the judge noted that two persons were involved in the offence.  Having referred to R v Chan Sui To^[5]; HKSAR v Lam See Chung Stephen^[6] and HKSAR v Tu I Lang^[7], the judge was of the view that a starting point of 3 years was appropriate.  The judge then reduced the sentence by one-third for the applicant’s guilty plea and imposed 24 months’ imprisonment. 

12.  For the theft charge, the judge stated that although it was not premeditated, the modus operandi closely resembled that of pickpocketing.  The judge therefore adopted a starting point of 15 months and enhanced it by 6 months to 21 months to take account of the applicant’s persistent offending.  With one-third discount for his guilty plea, the applicant was sentenced to 14 months’ imprisonment for Charge 3. 

13.  For Charge 4, the judge observed that the two knives were lethal weapons and adopted a starting point of 12 months, then reduced it to 8 months for the applicant’s guilty plea. 

14.  In considering totality, the judge was of the view that an overall term of 40 months was just and proportionate to the applicant’s overall culpability.  The judge thus ordered that 10 months from Charge 3 and 6 months from Charge 4 were to run consecutively to the sentence for Charge 2, the rest to run concurrently, resulting in an overall term of 40 months. 

Grounds of appeal

15.  Mr Wong, counsel for the applicant, advanced two grounds of appeal, being that the starting points adopted by the judge for Charges 2 and 3 were too harsh[8] and that the overall sentence of 40 months’ imprisonment was manifestly excessive. 

16.  For Charge 2, Mr Wong contended that the judge erroneously considered the offence to be premeditated when in fact the applicant was not charged with any offence involving the theft of the credit card.  Further, it was submitted that only one genuine card as opposed to a forged one was involved, and there was only one single purchase involving HK$10,710 when the credit limit was HK$22,000. 

17.  Mr Wong suggested that the circumstances were similar to those in HKSAR v Li Chi Yat^[9] where the court considered that, in that particular case, 2 years’ imprisonment was the appropriate starting point for a credit card fraud at the lower end of the scale of criminality. 

18.  Regarding the starting point for Charge 3, Mr Wong submitted that the judge erred in considering that the facts resembled a pickpocketing case and on this basis alone, adopted a starting point of 15 months’ imprisonment.  Mr Wong emphasised that the applicant was not a professional pickpocket and he only committed the theft out of momentary greed.  In respect of the enhancement for the applicant’s persistent offending, while Mr Wong agreed that the judge was entitled to order enhancement, he submitted that had the judge realised that Charge 3 was not akin to a pickpocketing case, the enhancement would not have been one of 6 months. 

19.  In respect of ground 2, Mr Wong argued that, in the circumstances of this case, the term of 40 months which represented a notional overall starting point of 5 years was manifestly excessive. 

Discussion

20.  For credit card fraud, the Court of Appeal pointed out in HKSAR v Lam See Chung Stephen^[10] that the sentencing principles for simple cases of counterfeit credit card fraud also applied to the fraudulent use of stolen genuine credit cards.  The judge, in the present case, when passing sentence for Charge 2, said that,

“34. In this case, the amount involved is $10,710 and the credit limit for the card in question is $22,000. This is one of the factors to be considered by the court.

35. The commission of the offence was, to a certain extent, a premeditated one as the defendant had beforehand agreed with the victim’s brother how they would divide the proceeds of crime if the defendant was successful in using the credit card of the victim. Two persons were involved in this scheme.

36. Considering all the circumstances of the case, this court finds that 3 years’ imprisonment is an appropriate sentencing starting point for this charge involving simple case of credit card fraud where stolen genuine credit cards are used to commit the offence. The case relied on is HKSAR v Lam See Chung, Stephen [2013] 5 HKLRD 242.

37. The defendant has one previous conviction in year 2002. This court, however, is not going to enhance the sentencing starting point by reason of such record.”[11]

21.  The judge’s above observations were based on the written mitigation submitted to her by counsel representing the applicant at the sentence hearing.  Given the account put forward, I do not see how it could reasonably be argued that the judge erroneously took such as the relevant background in considering the appropriate sentence.  With respect to Mr Wong, it matters not whether the applicant was charged with the theft of the credit card for it was his own case that he, pursuant to the agreement he had with “Shing Chai”, knowingly received the stolen credit card for making purchases.  In the circumstances, the judge was entitled to take matters such as the offence being a premeditated one, the agreed division of proceeds, and the joint enterprise into account in adopting a 3-year starting point. 

22.  Putting aside that comparison between cases is often meaningless, I do not agree that the present case was similar, as argued by Mr Wong, to Li Chi Yat where the appellant acted alone in stealing opportunistically the credit card left on a vehicle and when there was no planning or elaborate operation or any other aggravating factor.^[12]

23.  Regarding the starting point adopted for Charge 3, I consider the judge to be entitled to treat it as pickpocketing.  In HKSAR v Ngo Van Huy^[13], the Court of Appeal stated that the guideline sentence for pickpocketing offence was 12 to 15 months’ imprisonment after trial for a first offender; and that account had to be taken of aggravating features such as (i) the presence or use of a weapon such as a razor blade or knife which was used to cut open a handbag or intended to be used on the victim, (ii) where the offence was committed in a place in which the public was at particular risk, (iii) where the offence was committed in conjunction with another, and (iv) when the defendant was a repeat offender. 

24.  In the present case, the applicant approached Mr Au who was sitting on a staircase in public and he then not only took away Mr Au’s wallet but also cut open Mr Au’s bag to get the mobile phone.  Such conduct was no different from a pickpocket approaching a passer-by to steal the items.  Worse still, the applicant took advantage of the drunken state of Mr Au in the commission of this offence. 

25.  In respect of Mr Wong’s contention that the term “pickpocket” should refer to someone with a special skill, Ms Chan for the Respondent helpfully invited the court’s attention to R v Lau Kin-hong^[14] where Patrick Chan, J, as he then was, said,  

“I do not agree that pickpocketing cases must involve a sophisticated modus operandi or some special skill by a professional thief. Pickpocketing involves a variety of activities – ranging from picking the victim’s items conveniently from a bag carried by the victim to other more sophisticated manoeuvres.”

26.  Given the circumstances under which Charge 3 was committed, I do not see how it could reasonably be argued that the 15-months starting point was manifestly excessive. 

27.  As to the enhancement, Mr Wong frankly accepted that the judge was entitled to order enhancement as the applicant had a number of dishonesty-related convictions.  However, Mr Wong sought to argue that if the judge had realised that this was not a case of pickpocketing, then she would not have enhanced the sentence to the extent which she did.  With respect, I do not see the logic of Mr Wong’s argument, if it is accepted, which Mr Wong rightly did, that the applicant’s record showed a persistent pattern of dishonest conduct calling for an enhancement, then it matters not whether the present theft offence was one of pickpocketing, shoplifting, or a “general theft case”.  The essential consideration is that the applicant has, by his repeat offending and criminal history, illustrated that the present offence was not an “uncharacteristic aberration” but rather, it was a continued disobedience of the law in which case retribution, deterrence and protection of the society might all indicate that a more severe penalty is warranted.[15]

28.  In view of the applicant’s appalling record, including that it was just about 3 months after he had been released from prison for another theft offence when he committed Charge 3, I do not see the 6-month enhancement to be manifestly excessive or wrong in principle. 

29.  In respect of Ground 2, Mr Wong, when seeking to argue that the overall term of 40 months was excessive, suggested in his written submissions that the starting point of 12 months for Charge 4, the possession of the two knives, was “probably too harsh” as it was the applicant’s first conviction of this kind of offence. 

30.  It was not clear whether this complaint of harshness was made with the final term in mind or whether it was suggested that the judge erroneously took a starting point of 12 months for this charge.  If the latter, then it should be noted that the judge had examined the two knives, each of which was 31 cm in length with a 20-cm serrated blade.  The carrying in a public place of such lethal weapons as described by the judge is certainly not a minor offence. 

31.  Returning to the total term, one should, of course, stand back and examine whether the 40 months imposed for the applicant’s commission of the three offences was manifestly excessive.  The three charges related to distinct offences committed on different occasions.  There was no connection amongst them and the facts were different.  In the circumstances and subject to the totality principle, consecutive sentences are appropriate. 

32.  A term of 40 months would give a notional overall starting point of 5 years.  The judge considered the term to be able to sufficiently reflect the culpability of the applicant in this case and was “just and proportionate” after considering totality.  I agree.  The term was appropriate when due regard was given to the circumstances pertaining to the commission of the three offences and the circumstances of the applicant. 

Conclusion

33.  Having examined counsel’s submissions and all the relevant matters, I could detect no error on the part of the judge.  On the contrary, the judge had approached the sentencing exercise in a principled and structured manner.  In my view, none of the grounds put forth by Mr Wong was reasonably arguable and I refused the applicant’s application for leave to appeal against sentence.  

34.  The applicant could renew his application before the Court of Appeal but a warning is now given to him that should he do so, and should the Court of Appeal find no merit for the renewal of the application, the Court of Appeal may order loss of time which the applicant has spent in custody pending his appeal.