HKSAR v. LOH JOO HOOI

CACC 129/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 129 OF 2013

(ON APPEAL FROM DCCC 207 of 2013)

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REASONS FOR JUDGMENT

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Hon Macrae J (giving the reasons for judgment of the court):

1. The applicant was convicted on his own plea by HH Judge Yip of two charges of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200, and one charge of possessing false instruments, contrary to section 75(1) of the same Ordinance.  He was sentenced to concurrent terms of 2 years 8 months’ imprisonment in respect of each offence.

2. He applied for leave to appeal against his sentence, at the conclusion of which we refused leave and said we would hand down our reasons later.  This we now do.

The prosecution case

3. The facts giving rise to the charges were that on 5 January 2013, the applicant, who is a Malaysian national, entered Hong Kong en route for the Mainland.  Having spent the night of 5 January in the Mainland, he re-entered Hong Kong the following day as a visitor.

4. At a sports shop in Langham Place, Mongkok, on 6 January 2013, he purchased a pair of shoes and two jackets valued at HK$3544.20, using a forged American Express credit card.  Having successfully obtained the goods and left the shop, the applicant threw the forged credit card away (Charge 1).

5. At another shop in the same shopping centre, the applicant then proceeded to try and purchase a number of cosmetic items valued at HK$4410, using another forged American Express credit card.  On this occasion, payment was unsuccessful and the applicant was asked by the shop assistant to wait in the shop.  However, the applicant left the shop leaving the forged credit card behind (Charge 2). 

6. The shop assistant alerted the security staff in Langham Place, who later found the applicant nearby and attempted to intercept him.  A struggle ensued, during which the applicant discarded a wallet on to the ground.  The police were summoned and, upon their arrival, three more forged credit cards, ostensibly issued by the Royal Bank of Canada, the National Bank of Abu Dhabi and American Express, were discovered inside the wallet (Charge 3).

7. Upon his arrest and caution, the applicant claimed that he had picked up the wallet containing the forged credit cards in Shenzhen.  He said he had made the purchases out of momentary greed.

The applicant’s case

8. When mitigation was advanced before the trial judge by the applicant’s solicitor, she repeated the assertion in the Summary of Facts that the forged credit cards had been found by the applicant, explaining that he had come across the wallet on the floor underneath a table in a restaurant in Shenzhen where he had been having lunch before crossing the border into Hong Kong on 6 January 2013.  The judge probed this explanation and told the applicant’s solicitor that it was “not a very plausible story to have picked up those cards accidentally”.  He went on to say that if the applicant wished “to maintain his story that he accidentally picked up those cards on the floor of the restaurant, I think we need a Newton hearing”. 

9. Clearly, since the matter had now been raised and promoted by way of mitigation, it could not be ignored and the judge had to consider whether he should sentence on the basis that the applicant might have come across the credit cards in question by chance and later decided to avail himself of the opportunity of using them, as the defence claimed, or whether he was, as the judge later termed it, the “foot soldier of a syndicate” which was forging and distributing credit cards in the Mainland for use in Hong Kong, as the objective facts suggested.

10. Accordingly, he adjourned the matter for a few minutes to allow the applicant’s solicitor to take instructions as to whether her client was persisting with his assertion.  When, after the adjournment, the applicant’s solicitor informed the court that her instructions remained that he had found the wallet and credit cards under a table in a restaurant, the judge indicated to the solicitor that “if that is your instruction, initially I tell you my response.  I am not going to believe this without a Newton hearing”.  As a result of that indication, the applicant’s solicitor asked for another adjournment to take further instructions.

11. When the court resumed after the second adjournment, the applicant’s solicitor indicated that her client was maintaining his position, whereupon the judge embarked upon a Newton hearing. 

The Newton hearing and the judge’s findings

12. The applicant gave evidence at the hearing in accordance with his claim under caution referred to in the Summary of Facts, adding some colour to the assertion by explaining that he had dropped his jacket on the floor, which thereby became stained with tea, and when he bent down to pick it up, he noticed the wallet under the table.  He decided to keep the wallet and subsequently made use of the credit cards which were contained inside upon his arrival in Hong Kong.

13. The judge did not believe the applicant’s explanation.  He found that the applicant was part of a syndicate operating across the border, and that he

“had come from Malaysia and entered Shenzhen on the same day in order to collect five forged credit cards for use in Hong Kong. Those cards were apparently issued by international banks. These international implications warrant a more severe sentence.

I take a starting point of three years and six months (ie 42 months) for each offence.  I reduce it by only 10 months, which is less than one third, due to the failure in the Newton hearing on the part of the defence although he has pleaded guilty.  The eventual sentence is 32 months.  As the offences were proximate in time and location, the sentences shall be concurrent.”

The grounds of appeal

14. Mr Hung, on behalf of the applicant, submits that there was no need to have held any Newton enquiry in the circumstances of this case.  There was no suggestion in the Summary of Facts that the applicant was linked to a larger operation, and the assertion that he had accidentally come by the forged credit cards did not amount to a contradiction of the prosecution case.  It was no more than extraneous mitigation, which the judge could either accept or reject.  Accordingly, if the judge concluded that the opportunistic use made by the applicant of five forged credit cards found in a wallet under a table in a restaurant in Shenzhen was to be disbelieved, it should have had no effect on the issue of the appropriate starting point for the offence.

Consideration of the grounds of appeal

15. We cannot agree with this submission.  In this area of sentencing, the circumstances in which such an offence might be committed are myriad; from the opportunistic use on one occasion of a single genuine credit card belonging to someone who has mislaid it, in order to procure goods of not great value, to the syndicated manufacture and proliferation across the border of numerous forged credit cards with significant losses to individuals and businesses.  How a judge views the criminality of a particular defendant so as to arrive at an appropriate starting point depends on where, in that range of circumstances, the case before him falls.  There are a number of factors which bear on that determination, which are set out in the authorities: see, for example, R v Chan Sui-to [1996] 2 HKCLR 128.

16. In this particular case, the judge was faced with a foreign national who, a day after his arrival from Malaysia and within hours of his arrival in Hong Kong from the Mainland, had used two forged credit cards to purchase goods and had been found in possession of three other forged credit cards.  Given these objective facts, which suggested that the applicant had travelled from Malaysia to the Mainland in order to obtain five forged credit cards for use in Hong Kong, the judge would have been justified in inferring that he was part of an organisation involved, if not in the manufacturing, then in the distribution, of credit cards somewhere outside Hong Kong for use in this territory.  Those factors, which gave an international dimension to the offences, would have put him into a category significantly more serious than the one described in HKSAR v Tu I Lang (unrep) CACC 464/2006 at para 10, namely:

“Where the facts of the offence pointed to a small unsophisticated operation, involving only one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of three years’ imprisonment or less would be appropriate.”

17. The court in Tu I Lang, which was concerned with a Taiwanese national using one forged credit card but being in possession of two others, went on to observe, at paras 11-12:

“While some suspicion must attach to the arrival of the applicant in Hong Kong only the day before these offences were committed, the facts of the present case, as accepted by the judge, reveal only a small-scale operation with no international dimensions and no other aggravating features.

In our view the appropriate starting point of sentence for each offence was three years’ imprisonment.” (Emphasis supplied)

18. On the face of it, the Court in Tu I Lang appears to have been somewhat generous in proceeding on the basis that there was no international dimension to the offences before them, but it may be that they felt bound by the findings of the trial judge in this regard.  Be that as it may, we are dealing with a foreign national coming from Malaysia via the Mainland with five forged credit cards which he used to obtain goods worth just under HK$8000 within hours of his arrival in Hong Kong.  The judge rightly found, and Mr Hung does not dispute, that there was clearly an international element to the commission of the offences on those facts alone.  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. 

19. Nevertheless, Mr Hung argues that such an aggravating factor would have entitled the judge to adopt a starting point of 3 and a half years’ imprisonment (or 42 months), from which starting point the applicant should have been entitled to a full one-third discount, regardless of how he claimed to have come by the credit cards, taking his sentence to 2 years four months’ imprisonment (or 28 months).

20. The difficulty with this submission is that the judge had to determine the appropriate starting point in respect of the facts of this particular case.  He was faced with mitigation which suggested that the crime was an opportunistic one, in which the applicant simply chanced upon five forged credit cards and, out of greed, decided to try them out.  If that was or might have been true, then the applicant could reasonably argue that he was at the less serious end of the range of circumstances and culpability to which we have referred.  But, if that was not true, then the objective facts suggested a much more serious complexion to the offence. 

21. For within the space of a day, the applicant, a foreign national, had travelled from Malaysia to Hong Kong to the Mainland and back to Hong Kong.  It would have been remarkable enough if, within that limited time frame, he had stumbled across five genuine credit cards.  However, on his account, he stumbled across five forged credit cards in different names. If the judge rejected his explanation, then clearly he was more heavily involved and more closely connected with a cross-border operation which either manufactured or distributed the forged credit cards for use in Hong Kong.

22. The judge was not required to accept a questionable assertion from the applicant’s counsel or solicitor at face value. But nor could he ignore or reject it unless it was plainly incredible.  We think there is some force in Mr Kuan’s submission that, had the judge rejected outright an unlikely but not necessarily unbelievable explanation which, if accepted, would have lowered the starting point for sentence, the applicant might well have complained that the judge did not afford him the chance of making good his explanation at a Newton hearing: see HKSAR v Ngai Ho Ting [2013] 4 HKC 547 at 559 B-C. 

23. Moreover, the judge was not required to ignore the obvious inference which flowed from the objective facts revealed by the Summary of Facts.  Indeed, it was for that very reason that he had told the applicant’s solicitor that she would have to call evidence if he was to be persuaded not to draw such an inference.  In the recent case of HKSAR v Tandon William Chaing (unrep) CACC 404/2012, which involved the use of three genuine credit cards belonging to other people to purchase goods, this Court observed, at para 10:

“The coincidence of the appellant somehow finding and then using all of these cards on the very same day they were mislaid by the true owners is a remarkable one and would have entitled to judge to reject the way he claimed to have originally come into possession of the cards. Not only does the coincidence call into question how the appellant came by the credit cards but it may also suggest that he was not acting alone. Be that as it may, the appellant had to be dealt with, as he was indeed dealt with, in respect of the offences with which he was charged.”

24. In Tandon William Chaing, the trial judge had made no finding as to whether or not the appellant had come by the credit cards as he claimed he did and the Court dealt with the appeal on that basis, notwithstanding the remarkable coincidence to which it referred.  The Court also made clear that, whatever the inferences to be drawn, the appellant could not be sentenced on the basis of another offence with which he had not been charged; such as the theft of the cards in question. 

25. However, courts are not obliged to shut their eyes to the obvious in determining the criminality of the offence before them.  The judge in the present case made it clear that he was not prepared to proceed on the bare assertion in mitigation that the applicant had simply found the cards under a table in a restaurant in Shenzhen and subsequently decided to make use of them in Hong Kong.  In other words, he was not prepared to accept that the defendant’s actions were opportunistic and adopt a starting point commensurate with such a claim, without an evidential basis for doing so.  However, the judge afforded the applicant the opportunity of dissuading him from drawing the inference that he was more closely involved with the operation which was producing the credit cards outside Hong Kong.  If he were successful in that endeavour, the applicant’s criminality could properly have been viewed at the less serious end of the spectrum: if he were not successful, his conduct would be viewed in the more serious way the judge had already indicated.

Conclusion

26. In our judgment, it was entirely proper for the judge, having indicated that he would not accept the applicant’s bare assertion without evidence, to conduct a Newton enquiry, the outcome of which would inevitably determine the way he looked at the gravity of the offences.  This was not a case where it could be said that the applicant’s assertion, whether it was believed or not, made no discernible difference to sentence.  There is a significant difference for sentencing purposes between an opportunistic user and one with links to a more serious, international operation.  Despite full and repeated warnings as to the consequence of persisting with his assertion, the applicant maintained his instructions that he had come by the credit cards by chance and that his crime was opportunistic; and he duly gave evidence to that effect.  Ultimately, however, he was disbelieved. 

27. We see nothing wrong in such circumstances in the judge not according the applicant the full one-third discount for his pleas. To have still given the applicant a full one-third discount, after failing to dissuade the court from adopting a higher starting point on the basis of the inferences to be drawn from the objective facts, would have made the purpose of the Newton hearing meaningless and allowed the applicant to persist with his assertions with impunity.

28. It was for these reasons that the application was refused.