HKSAR v. MA CHOY YU

HCMA608/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.608 OF 1999

(ON APPEAL FROM SKCC 211 OF 1999)

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J U D G M E N T

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1. The Appellant was convicted of two charges of conspiracy to use false instruments. The 1st charge alleged that he had conspired with the 2nd, 3rd and 4th defendants and another person to use three forged credit cards at a particular shop. The 2nd charge alleged that he conspired with the 2nd defendant and another person, not involved in the 1st charge, to use one forged credit card at the same shop. The 2nd, 3rd and 4th defendants pleaded guilty and gave evidence for the prosecution against the Appellant.

2. The facts of the case are basically that the Appellant had acted as a middleman to introduce various persons to the 2nd defendant whose brother owns a camera and audio shop which is mentioned in the two charges. The 4th defendant was the person who had bought the three forged credit cards involved in the 1st charge. The 3rd defendant was another middleman. The conspirators had tried out the three forged credit cards at the shop in question and found that only one of them, which had been swiped for $8,500 worked. There was no evidence to show that any goods were taken from this particular shop even though it could be said that since one of the forged credit cards had successfully been swiped for $8,500, goods to that value could have been obtained from that shop.

3. The 2nd, 3rd and 4th defendants were each sentenced to five months' imprisonment and that was arrived at by the trial Magistrate reducing the sentence from ten months to five months on account of their assisting the prosecution by giving evidence against the Appellant. The Appellant himself was sentenced to nine months' imprisonment on each charge, to be served consecutively, making a total of 18 months. He now appeals against those sentences.

4. One of the grounds of his appeal advanced by his Counsel, Mr Coghlan, was the disparity between the sentence imposed on him and that imposed on the co-defendants. Disparity is always a ground of appeal which can be advanced on an appeal against sentence, but it is settled law that when one is considering such ground, the court has to look at the sentences which were actually imposed on the Appellant to see whether those sentences are appropriate. If the sentence imposed on the Appellant is appropriate, then even though he may feel a strong sense of grievance because of the disparity, the sentence imposed on him would still be upheld. In my view, the learned Magistrate had given the 2nd, 3rd and 4th defendants too much of a discount for their assistance to the prosecution. In so far as what should be a proper sentence for them, I think this can be gleaned from what I shall hereinafter say about the Appellant.

5. In my view, it is very difficult to try and distinguish the roles played by these four conspirators. Each of them played an important part in the conspiracy, and it is difficult to say that a particular conspirator's role is more serious than that of the others. In the case of the Appellant, the trial Magistrate had said that the fact that he was a police officer was an aggravating factor. In my judgment that was an error by the Magistrate. It was not an aggravating factor just because he was a police officer, it would have been an aggravating factor if he had abused his position or his powers as a police officer to commit these offences. But in the present case he had not, and there was no evidence that the commission of these offences had anything to do with his duties or powers as a police constable.

6. These offences were submitted to me to have been less serious than other cases because no goods were actually taken from the shop in question. That is true in so far as it goes, but that would be ignoring the stark realities that if the conspirators had not been apprehended, there is no way of knowing how far these conspiracies would have gone, how many shops would have been involved, and how much goods would have been taken from the shops.

7. Mr Chan, for the Respondent, had submitted to me that from the previous cases dealing with credit card offences, an appropriate starting point would be one of 18-months. Mr Coghlan had suggested that the appropriate starting point should be one of 12-months. It is difficult to make comparisons between one case and another because obviously the facts vary from case to case, and I am not purporting to set a precedent by stating what the appropriate starting point should be. However, my view is that the appropriate starting point for this case should have been one of 15-months.

8. Mr Coghlan has submitted to me that the sentences imposed on these two charges should be concurrent rather than consecutive. His reasons for so submitting were that the duration of the two conspiracies were very close to each other and there was in fact overlapping between the duration in the 2nd charge and the concluding period in the 1st charge. He also submitted that the shop concerned was the same shop.

9. The trial Magistrate was, of course, correct to treat these two offences as distinct and separate offences. However, as Counsel has pointed out, where one has more than one charge involving the same or similar charges spanning over a period of time, the usual sentencing practice is to pass concurrent sentences. Bearing in mind what the appropriate sentence ought to be for each charge, and bearing in mind the totality principle, I agree with that submission and I will make the sentences on the two charges concurrent. The only question is whether they should be wholly concurrent or whether they should be partly consecutive and partly concurrent. Taking into account the totality principle, my view is that the two sentences should be wholly concurrent. So the result is that the appeal is allowed to this extent. The sentence on the 1st charge will be substituted with a sentence of 15 months' imprisonment and the sentence on the 2nd charge will be substituted with the same sentence of 15 months' imprisonment. The two sentences are to be served concurrently, so the net result is the Appellant will serve 15 months.