HKSAR v. Wang Shuai also known as Yeung Fung

CACC 183/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 183 OF 2016

(ON APPEAL FROM DCCC 722 OF 2015)

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REASONS FOR JUDGMENT

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1.On 8 June 2016 the applicant appeared before District Judge Woodcock (“the judge”) and pleaded guilty to 7 charges of a charge sheet containing 10 charges. The charges to which he pleaded guilty were charges of “Fraud”, contrary to section 16A of the Theft Ordinance, Cap 210; three charges of “Obtaining property by deception”, contrary to section 17(1) of the Theft Ordinance, Cap 210; “Attempted fraud”, contrary to section 16A of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200; “Handling stolen goods”, contrary to section 24 of the Theft Ordinance, Cap 210; and “Failing to surrender to custody without reasonable cause”, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221.

2.On the same day he was sentenced to a total period of 2 years 9 months’ imprisonment. 

3.He subsequently applied for leave to appeal his sentence.  At the hearing of the application I refused it and said I would hand down my reasons for doing so at a later date.  This I now do.

The background to the offences

4.On 23 June 2014 Mr Lun Tsz Wang lost his wallet.  The wallet contained his identity card, his Home Visit Permit, a Hang Seng Bank spending card, a Hang Seng Bank credit card, a Citibank VISA card, an ICBC credit card and Hongkong and Shanghai Banking Corporation (“HSBC”) Limited ATM card.

5.On 30 June 2014 a security guard of Mr Lun’s residence observed a male and a female removing letters from Mr Lun’s mailbox. 

6.In July 2014 Mr Lun was informed by the HSBC that somebody had withdrawn HK$19,000 from his account.  Citibank also informed Mr Lun that somebody had called the bank and requested the re‑issue of his credit card. However, Mr Lun never received this new card and Citibank confirmed that the new card had been used between 30 June 2014 and 1 July 2014 to make a number of purchases. 

7.On 30 June 2014 the applicant approached the sales manager of the Tsuen Wan branch of the HSBC and represented himself as Mr Lun.  He requested this sales manager to change the personal information, such as contact phone number and work address, of Mr Lun’s HSBC account and then applied for replacement of the ATM cards in respect of two of Mr Lun’s HSBC accounts.  In identifying himself as Mr Lun the applicant presented Mr Lun’s identity card to the HSBC sales manager.  Ultimately, as the result of being able to present himself as Mr Lun the applicant succeeded in withdrawing cash of HK$19,000 from one of Mr Lun’s account.  This money has not been recovered.  This conduct of the applicant and his obtaining of the HK$19,000 from Mr Lun’s account formed the subject of the 1^st charge. 

8.On 30 June 2014 the applicant used Mr Lun’s Citibank VISA card to purchase a Louis Vuitton handbag at a cost of HK$10,180.  This handbag has not been recovered and its purchase is the subject of the 2^nd charge.

9.On 1 July 2014 the applicant again used Mr Lun’s Citibank VISA card to purchase a number of handbags at a total cost of HK$13,880.  These handbags have not been recovered and their purchase is the subject of the 4^th charge.

10.On 1 July 2014 the applicant purchased a pair of sunglasses for HK$1,681, again using Mr Lun’s Citibank VISA card.  These sunglasses have not been recovered and their purchase is the subject of the 5^th charge.

11.On 22 July 2014 the applicant approached a customer service officer of the Citibank and claiming himself to be Mr Lun, attempted to change the contact telephone number of the Citibank VISA card of Mr Lun for online transactions.  However, as the staff member of Citibank found that the photograph of the identity card of Mr Lun did not match with the appearance of the applicant she reported to the matter to her bank manager who then reported the case to the police.  The applicant’s conduct is the subject of the 8^th charge. 

12.When police officers arrived and conducted a body search of the applicant they found him to be in possession of a wallet which contained the Hong Kong identity card, Home Visit Permit and 5 bank cards belonging to Mr Lun.  The possession of these items is the subject of the 9^th charge.  

13.When the applicant was arrested he explained under caution that the wallet and the cards in it were provided to him by a person by the name of Mak Ho Yin and he assisted Mak in trying to change the contact number of Mr Lun’s account because he was indebted to Mak.

14.On 23 July 2014 police officers conducted two video recorded interviews with the applicant in which the applicant made admissions to the charges to which he pleaded guilty.

15.The applicant was subsequently charged with the offences contained in the District Court Charge Sheet and when he pleaded not guilty his case was set down for trial.  When he appeared before the District Court on 22 January 2016 for a Pre-Trial Review hearing he indicated to the court he would plead guilty.  He was then on bail and his bail was extended on condition he attend the District Court on 25 February 2016.  On that date the applicant did not attend the District Court and he could not be located or contacted by the police. 

16.On 4 April 2016 the applicant was arrested by the police.  On being interviewed under caution in respect of his failure to attend the District Court he admitted that he knew of his obligation to attend the court and said he did not turn up as he owed debts of HK$50,000 to a loan shark and he had to sort out those debts otherwise he feared the loan shark might disturb his family.  He said this matter could not be resolved but he did not surrender to the court or the police as he knew he would then be arrested.  This conduct of the applicant is the subject of the 10^th charge.

The mitigation

17.The applicant’s counsel informed the court the applicant was 39 years old at the time of sentence and was single.  He had received education in Hong Kong only up to Form 1 secondary level and had thereafter ended his schooling and worked as a cook.  In 2011 he became addicted to the drug “Ice” and, as a consequence, incurred heavy debts.  He was unable to pay his debts and in 2011, on his own application, he was declared bankrupt.  In October 2015 he managed to end his addiction to “Ice” and no longer consumes any form of dangerous drug. 

18.His counsel told the court that the reason why the applicant committed the offences was because he was indebted to a loan shark and was unable to make the interest payments.  He decided to negotiate the resolution of his financial problems with the loan shark and this was the reason why he did not attend court in compliance with his bail conditions.

19.The applicant had previous convictions in 1999 for possession of an offensive weapon and robbery for which he had been sentenced to Detention Centre.  He had not committed any offence since then until 2013 when he was convicted for possession of a dangerous drug and fined $4,000.  This recent offence flowed from his then addiction to “Ice”. 

20.On behalf of his client his counsel apologized to the court for his conduct and indicated that the applicant was remorseful.

21.In respect of the offences his counsel submitted that the applicant was not the mastermind of the offence and referred the court to a number of legal authorities containing sentencing guidelines for credit card offences.

The Judge’s Reasons for Sentence

22.After setting out the charges and the facts underlying them and the information provided by the applicant’s counsel in respect of the applicant’s personal circumstances, the judge turned to a discussion of the relevant sentencing principles.  The judge had been referred by counsel for the applicant and the respondent to the cases of R v Chan Sui To & anor [1996] 2 HKCLR 128; HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242; HKSAR v Tu I Lang CACC 464/2006, unreported, 18 May 2007 and HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517.

23.The judge noted that “severe sentences are necessary to deter others who may be tempted to beat the integrity of the credit card system by fraudulent means” and that where the credit card fraud is a simple one with no international element, little loss and few cards being involved the appropriate starting point would be 3 years’ imprisonment or less.

24.In respect of the applicant’s overall conduct she noted that the total loss suffered as a result of his offences was $44,741.  She described his conduct in approaching the banks to change the personal particulars of Mr Lun’s account so that he could withdraw cash from the bank account as a serious attack on the integrity of the banking system.  However, she noted that the applicant’s actions did not reflect a particularly sophisticated operation and that he was bound to get caught eventually.

25.The judge said that after taking into account the fact that the applicant had no previous similar conviction, as well as the mitigation advanced by his counsel on his behalf, she would adopt a starting point for charges 1 and 8 of 3 years’ imprisonment and for charges 2, 4 and 5 of 2 years and 9 months’ imprisonment.  For the 9^th charge she adopted a starting point of 2 years and 6 months’ imprisonment and for the 10^th charge a starting point of 6 months’ imprisonment. 

26.The judge then said that as the applicant had pleaded guilty he was entitled to a discount from these starting points of one-third.  After discounting the starting points by this amount the following sentences resulted:

(a) Charge 1: 2 years’ imprisonment;

(b) Charges 2, 4 and 5: 1 year and 10 months’ imprisonment;

(c) Charge 8: 2 years’ imprisonment;

(d) Charge 9: 1 year and 8 months’ imprisonment;

(e) Charge 10: 4 months’ imprisonment.

27.The judge then turned to the question of what orders she would make in respect of the operation of these sentences.  In approaching this issue she said she took into account the totality principle and the fact that some of the offences had been committed on different dates and some of the offences were different in nature.  She then ordered that 4 months of Charge 2 be served consecutively to Charge 1; that 3 months of Charge 8 be served consecutively to Charge 1; and 2 months of Charge 10 be served consecutively to Charge 1.  The balance of the charges, as well as the sentences for Charges 4, 5 and 9 she ordered to be served concurrently to Charge 1.  This produced a total sentence of 2 years and 9 months’ imprisonment.

The grounds of appeal

28.In his Form XI the applicant simply complained that this sentence was excessive.  Prior to the hearing of his application he did not file any written submissions and at the hearing itself he was not able to articulate any specific complaint.  He was only able to say that he felt his sentence was too long and he wanted the court to reduce it.  

Discussion

29.I have carefully considered the judge’s Reasons for Sentence and can find no error in them.  She has correctly directed herself on the relevant sentencing principles and I agree with her assessment of the seriousness of the applicant’s conduct and of his overall culpability.  There is nothing excessive in the starting points she adopted and in her calculation of her final discounted sentences.  However, it should be said that, given that the applicant absconded before he pleaded guilty he can feel fortunate that the judge still awarded him the full one-third discount.    

30.In determining whether to order the sentences to be served concurrently or consecutively the judge was correct to conclude that some element of consecutiveness was necessary in order to properly reflect the applicant’s overall culpability.  In deciding what degree of consecutiveness was appropriate the judge, quite properly, had regard to the totality principle.  In my view it is not reasonably arguable that the total sentence imposed on the applicant was in any way excessive.

Conclusion

31.For these reasons I refused the application for leave to appeal.  After informing the applicant that I refused his application I advised him of his right to renew his application before the Court of Appeal.  In addition I advised him of the power possessed by the Court of Appeal, by section 83W(1) of the Criminal Procedure Ordinance, Cap 221, to make a loss of time order should it conclude that there was no merit in his renewed application.

Miss Ranee Jhamatmal Khubchandani PP, of the Department of Justice, for the respondent

The applicant appeared in person