HKSAR v. Chan Yip Chi
Read the full judgment text of CACC 153/2001 on BabelCite. This Court of Appeal judgment was delivered on 29 November 2001 before Woo JA, Lugar-Mawson J.
Criminal law – sentencing – counterfeit credit cards – obtaining property by deception – possession of false instruments – Theft Ordinance Cap 210 s.17(1) – Crimes Ordinance Cap 200 s.75(1) – appeal against sentence – whether sentences manifestly excessive – whether sentences should be concurrent as part of one criminal enterprise – disparity with co-defendant – whether discount for promise to give evidence against absconded co-accused is permissible – use of forged credit cards at multiple shops on the same day – Whether sentences were manifestly excessive: the Court of Appeal held that while a 6-year starting point may be regarded as too high given the appellant was not charged with the one effective obtaining offence, the 50% discount (one-third for plea plus an additional 20% for a promise to testify) effectively negated any reduction, and the overall 36-month total was appropriate – Whether sentences should be concurrent: no, since each charge was a separate and distinct offence directed at different victims or future offences, and the focus is on totality – Whether disparity with co-defendant arose: no, since the judge's error (if any) was to the 1st Defendant's advantage by failing to make his forged identity card sentence consecutive, not to the appellant's detriment – Whether promise to give evidence is a mitigating factor: no, following R v Wong Kam Chiu, the appropriate course is to defer sentence or ignore the promise and leave any discount to the appellate court or the Governor-in-Council upon fulfilment – Outcome: appeal against 36 months' imprisonment dismissed.
Legal issues: Whether sentences for credit card forgery offences were manifestly excessive · Whether sentences on three charges should have been concurrent rather than consecutive · Whether disparity with co-defendant's sentence renders appellant's sentence excessive
Outcome: Appeal against sentence dismissed; total sentence of 36 months' imprisonment upheld.
Cited by 5 cases · Cites 5 cases
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CACC000153A/2001 CACC 153/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 153 OF 2001 (ON APPEAL FROM DCCC 1181 OF 2000) _______________________
_______________________ Coram: Hon Woo, JA and Lugar-Mawson, J in Court Date of Hearing: 29 November 2001 Date of Judgment: 29 November 2001 _______________ J U D G M E N T _______________ Hon. Lugar-Mawson, J (giving the judgment of the Court): 1.On 17 April 2001, Chan Yip Chi, the Appellant, who was one of three defendants named on the District Court charge sheet, pleaded guilty before Deputy Judge McNair in the District Court to:
2.He was sentenced to 12 months' imprisonment on the 1st charge, 12 months' imprisonment on the 3rd charge to be served consecutively to the sentence on the 1st charge, and 24 months' imprisonment on the 6th charge, 12 months of which was to be served consecutively to the sentences on the 1st and 3rd charges; making his sentences a total of 36 months' imprisonment. 3.The Appellant, who was the 3rd Defendant at trial, now appeals against those sentences, leave to do so having been granted by Keith JA on 17 August 2001. 4.The 2nd Defendant absconded before trial. The 1st Defendant, a man named Lui Kim Hung, who faced four charges (the 2nd on the charge sheet of Obtaining property by deception, the joint 3rd charge of Attempting to obtain property by deception, the 4th of Possession of false instruments and the 5th of Possession of a forged identity card) was also sentenced to a total of 36 months' imprisonment. 5.The Judge did not indicate the starting point he adopted in respect of the sentences he passed on the Appellant, although by reference to the sentence passed on the 1st Defendant, it would appear that he allowed a 50 per cent reduction from the sentences he would otherwise have passed to reflect the Appellant's pleas of guilty; the fact that both the Appellant and the 1st Defendant had offered to give evidence against the 2nd Defendant and the fact that the case against the 2nd Defendant was very much dependent on the evidence of the Appellant and the 1st Defendant. It can thus be taken, as a matter of simple arithmetic, that the Judge adopted a total starting point of 6 years' imprisonment before passing the individualised sentences in respect of the three charges the Appellant faced. 6.The Appellant has been unable to fulfil his offer to give evidence against the 2nd Defendant, as he remains at large. 7.The facts may be simply stated: the three defendants, on 17 October 2000, used forged credit cards in a number of shops to purchase or attempt to purchase high value items, which no doubt they hoped to easily 'fence'. Six forged credit cards and a forged Hong Kong identity card were found in the 1st Defendant's possession on his arrest, and three forged credit cards were found in the Appellant's possession on his arrest. In the only effective obtaining, that in the 2nd charge which the Appellant did not face, the value of the property, a video camera, was $12,990. 8.Mr Kumar Ramanathan who appears for the Appellant, though he was not his Counsel at trial, argues three grounds of appeal against sentence, namely:
9.On the issue of severity, offences involving forged credit cards are rightly considered to be serious ones. 10.In Attorney General v Chan Pui Sang and Another [1994] 1 HKCLR 211, which was an application for review of sentence, where the Respondent had pleaded guilty to two counts, one for possession of two forged credit cards, the other for possession of five forged credit cards, the Court of Appeal held that the starting point for the two counts should be 11/2 years and 4 years' imprisonment respectively. 11.Silke VP, giving the judgment of the Court, said at page 214, at letter 5:
12.In R v Chan Sui To and Another [1996] 2 HKCLR 128, a case that was referred to by the Judge in his reasons for sentence, Sir T L Yang CJ, at page 134, line A, said:
13.In HKSAR v Poon Cho Shu, CACC 55 of 2000 (unreported), where the applicant used three counterfeit credit cards to purchase goods worth around $11,000 and was in possession of a fourth counterfeit credit card and an identity card in the name of another person, a starting point of 3 years was taken by the Court of Appeal for the five charges involving counterfeit credit cards, and 1 year as the starting point for the single charge of possession of the other's identity card, making a total of 2 years 8 months' imprisonment, after allowing for a one-third discount for plea. 14.In HKSAR v Chan Yuk Kwan [2001] HKEC 769, where the applicant forged application forms for credit cards and, by so doing, obtained six cards from a number of banks and then used them to obtain various items worth $148,000 in total, an overall starting point of 4 years was taken by the Court of Appeal. 15.In HKSAR v Chow Fu Keung [2001] HKC 1029, where the applicant used false documents to obtain credit cards over a time span of about four months and obtained items worth around $138,500, 5 years was taken as the starting point by the Court of Appeal. 16.These cases suggest that the overall starting point of 6 years' imprisonment taken by the Judge in this case may, in itself, be regarded as being too high, given the fact that the Appellant was not charged with the one effective obtaining offence. 17.However, the Appellant was given a 50 per cent discount for his plea and a promise to give evidence against the 2nd Defendant. A one-third discount for the guilty plea is well within accepted sentencing practice. However, such a generous further discount, effectively one of an additional 20 per cent, should not have been given merely to reflect the Appellant's promise to give evidence against the 2nd Defendant. A defendant's willingness to give evidence against his co-accused is not a mitigating factor. It may never be actioned and the defendant who makes it may resile from his offer to do so. As Keith J said in R v Wong Kam Chiu [1993] 2 HKC 700, at 704, lines A to B:
18.This unjustified discount effectively takes away any benefit that the Appellant may have expected by reason of the starting point being too high. If the 2nd Defendant is located and the Appellant performs his promise to give evidence against him, it is open to him to petition the Executive for a reduction in his sentence. 19.On the issue as to whether or not the sentences should have all been concurrent, while it is true that all were committed on the same day, each was passed in respect of a separate and distinct offence. The two attempted obtainings by deception were directed at different victims and the possession offence was directed at future offences, which no doubt would have been committed had the Appellant not been arrested. Perhaps more importantly, the Appellant fell to be sentenced for his overall criminality and, provided that the overall sentences are correct, it matters little whether they were arrived at by way of concurrent or consecutive sentences. We are satisfied that an overall sentence of 36 months' imprisonment for the Appellant's three offences, although high, is the correct one. 20.On the issue of disparity in sentence, in one sense there is no disparity. Both the Appellant and the 1st Defendant received the same overall sentences, a total of 36 months' imprisonment. The complaint is that the 1st Defendant did not receive a higher sentence to reflect his possession of the forged identity card. 21.A true disparity between sentences passed by the same judge, on the same occasion, only arises when it can be shown that the judge has not properly apportioned blame between the accused in respect of their roles in relation to the same or similar offences. If the sentence the Appellant received is otherwise appropriate and the judge laboured under no misapprehension as to the roles played by the various accused, the sentences should stand. 22.If the Judge fell into error in sentencing the two defendants in this case, it was not that, in respect of the offences relating to the use and possession of forged credit cards, he failed to differentiate between the respective culpability of the two defendants. In fact, without expressly saying so, he appears to have regarded them as both bearing the same degree of culpability; which, given the similarity of the charges they faced, must be correct. His error is that he failed to order that the sentence for the offence of possessing the forged identity card which was unique to the 1st Defendant, be served consecutively to his sentences for the offences relating to the use and possession of the forged credit cards. The 1st Defendant may, no doubt, count himself lucky because of that. But that cannot avail the Appellant because he, in our view, received the appropriate sentences for his offences. 23.The Appellant's appeal against his sentences is dismissed.
Representation: Mr Jackson Poon, Senior Government Council, for the Respondent (HKSAR) Mr Kumar Ramanathan, assigned by the Department of Legal Aid, for the Appellant |
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