HKSAR v. THANASEGARAN ARUMUGAM

CACC 314/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 314 OF 2014

(ON APPEAL FROM DCCC NO. 621 OF 2014)

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REASONS FOR JUDGMENT
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Hon Macrae JA (giving the reasons for judgment of the Court):

1.  The applicant pleaded guilty before HH Judge Dufton in the District Court to two charges, the first of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200 (Charge 5); the second of possessing false instruments, contrary to section 75(1) of the same Ordinance (Charge 6). He was sentenced to 2 years and 2 months’ imprisonment on Charge 5 and 3 years and 4 months’ on Charge 6, both sentences being ordered to run concurrently with each other, making an overall sentence of 3 years and 4 months’ imprisonment. Leave to appeal against sentence in relation to Charge 6 was refused by McWalters JA on 26 November 2014. The applicant renews his application before the full court today. He also seeks leave to appeal out of time in respect of his sentence on Charge 5 and in relation to conviction. Upon clarification by the Court, however, it became clear that the applicant has never intended to appeal against his conviction: his concern has always been with the length of sentence. It would seem, therefore, to have been an error on his part. In those circumstances, we refused the application.

2.  In respect of the applicant’s appeal against his sentence on Charge 5, no explanation has been given as to why he should have consciously decided to appeal against one sentence and not the other.  Indeed, in his ‘Notice of application for leave to appeal against sentence’ (Form XI), the applicant had said in terms: “I want to appeal the 6^th charge only.”  In any event, the effect of section 83I(2) of the Criminal Procedure Ordinance, Cap 221 is to cause all sentences passed upon the applicant in the same proceeding to be treated as the subject of this application.  We shall, therefore, consider the merit of the application in relation to both sentences.

The relevant facts

3.  The applicant, who is a Malaysian national, arrived in Hong Kong on 22 April 2014.  Four days later, on 26 April 2014, the applicant entered L’Occitane shop at Level 1 of One Pacific Place, 88 Queensway in Admiralty where he used an ANZ bank visa card in the name of Mok JZ to pay for a bottle of perfume priced at $520.  In the process, he signed both the invoice and the credit card receipt.

4.  Alerted by the shop staff, the applicant was intercepted nearby in Pacific Place by police, who discovered a total of 17 credit cards on his person, including the card he had just used, all of which were found to be forged.  Apart from the credit card used in the transaction at L’Occitane in the name of Mok JZ, the other 16 cards bore his true name.  The 17 cards had been purportedly issued by 9 different banks and three of the cards related to genuine accounts.  The total potential loss from the forged credit cards was over $220,000.

5.  It was said in mitigation that because of his financial difficulties, the applicant had devised a plan to come to Hong Kong in order to use the forged credit cards.

6.  It should be noted, however, in the light of the applicant’s complaints about his sentence, that he originally appeared at trial with another defendant.  That defendant had pleaded guilty to four charges on the same charge sheet; one of theft of a credit card (Charge 1) and three of obtaining property by deception (Charges 2, 3 and 4).  The link between that defendant and this applicant was that in respect of Charges 3 and 4, both men had earlier on the same day entered another shop in Pacific Place where, in the presence of the applicant, the other defendant had purchased some clothes on two separate occasions using the stolen credit card, the subject-matter of Charge 1.  On the second of those occasions (Charge 4), the item of clothing (a scarf) purchased had been selected by the applicant, who was found wearing it when arrested later.  Charges 3 and 4 were, therefore, laid against both men jointly, although the prosecution had accepted the applicant’s pleas of guilty to Charges 5 and 6 only and were prepared to agree that Charges 3 and 4 should remain on the file marked not to be proceeded with.  The other defendant received in respect of Charges 1-4 an overall sentence of 2 years and 6 months’ imprisonment.  The total value of the goods obtained by the other defendant was $63,016.

The judge’s sentence in respect of the applicant

7.  The judge was satisfied, by virtue of the sheer number of forged credit cards, 16 of which were in his name, that the applicant must have been linked to a wider organisation that had caused the credit cards to be printed specifically for him.  He further found that the bringing of the forged credit cards into Hong Kong with the intention of committing crime in the territory added an international dimension to the case.  Given the large number of credit cards and the size of the potential loss which could have been occasioned thereby, he considered that the facts brought the case within what was described in R v Chan Siu To [1996] 2 HKCLR 128 as ‘a medium size operation’.  Accordingly, he adopted an overall starting point of 5 years’ imprisonment which, after discount for plea, resulted in the sentences passed.

The applicant’s grounds of appeal

8.  The applicant has not set out any formal grounds of his appeal against sentence.  However, before us he has complained that the sentence is manifestly excessive and wrong in principle when compared with the sentence passed on the other defendant.  He contends that it is also too severe when compared with other sentences passed in comparable forged credit card cases.  Furthermore, he takes issue with the judge’s identification of this case as ‘a medium sized operation’ with an international element.

Consideration

9.  There can be no valid complaint of disparity with the sentence passed upon the other defendant.  That defendant was concerned with the theft of a single credit card and three obtainings of property by deception using that credit card.  The offences with which the applicant fell to be dealt were far more serious, even if the amount obtained using one of the forged credit cards was significantly less.

10.  Given the large number of forged credit cards in the applicant’s possession, it is clear that if not an integral part of an organisation which manufactured and distributed forged credit cards himself, he clearly had close links with that organisation in order to have obtained no less than 17 such cards; 16 of them in his own name.  In our judgment, the number of forged credit cards together with the potential loss they could have caused, quite apart from the actual loss occasioned by the card used in Charge 5, brought this case within what could properly be described as ‘a medium size operation’.

11.  Furthermore, it is clear that the applicant had come to Hong Kong for the specific purpose of using those credit cards to obtain goods and services unlawfully.  Not only was that accepted in mitigation by his solicitor, but he had only arrived in Hong Kong four days before his arrest.  There was plainly an international element in the offences which was capable of aggravating the appropriate sentence.  As this Court said in HKSAR v Loh Joo Hooi (unrep., CACC 129/2013, 11 September 2013), at para 18:

“We should, however, make clear that it is not, in this case, the fact that the applicant is a foreign national who happens to have committed a crime in Hong Kong, which provides the aggravating international element for sentencing purposes: the aggravation lies in the intentional bringing of the instruments of crime over the border from another jurisdiction for their use or proliferation on the streets of Hong Kong.”

12.  In Chan Siu To(supra), it was suggested that

“…an accused who plays an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of five to six years after trial.” (Emphasis supplied)

13.  In this case, there was an international dimension, as the judge correctly found, yet the starting point adopted was 5 years’ imprisonment.  In our view, the applicant would have had no complaint if the judge had adopted a higher starting point in all the circumstances.  In fact, the applicant was specifically told in the judgment on his application for leave before the Single Judge, at para 9, that:

“…indeed for an offence as serious as this the judge might well have adopted a higher starting point.”

Conclusion

14.  In our judgment, the sentences were richly deserved and there can be no conceivable complaint about them.  The application in respect of the sentences passed on Charge 5 and 6 must be refused.

Loss of time

15.  Having refused the applications, we invited the applicant to address us on the issue of the Court making a ‘loss of time’ order.  Although he did so, the applicant did not advance any intelligible reasons, let alone relevant ones, in relation to that issue.

16.  Following the decision of the Single Judge in his written judgment dated 26 November 2014, the applicant lodged a ‘Notice of renewal of application after refusal by the Single Judge’ (Form XIII) on 28 November 2014, in which by his signature he acknowledged a note to the effect that if he renewed his application, leave having been refused, he was at risk of loss of time spent in custody.  It is also to be noted that in his original Form XI notice of application, the applicant had also written, ostensibly in his own hand, that he understood “that the appeal against sentence may result in an increase in sentence”.

17.  In our judgment, there was absolutely no merit whatsoever in this application.  The applicant has been duly warned of the dangers of renewing a plainly unmeritorious application for leave to appeal against the sentence passed in respect of Charge 6, and he himself had indicated that he fully understood that one of the consequences of doing so may be that the sentence would be increased. Furthermore, he had been told in terms by the Single Judge (supra para 13) that his original sentence could well have been higher than it was.

18.  Accordingly, given the complete absence of any merit in this renewed application which has now failed, we order, pursuant to section 83W of the Criminal Procedure Ordinance, Cap 221, that 3 months of the time during which the applicant has been in custody pending determination of his application in respect of Charge 6 shall not be reckoned as part of the sentence of 3 years and 4 months’ imprisonment to which he is for the time being subject.