HKSAR v. Dhaliwal Jaspreet Kaur and Another

CACC 337 /2018

[2019] HKCA 837

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMININAL APPEAL NO 337 OF 2018

(ON APPEAL FROM DCCC NO 539 OF 2018)

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J U D G M E N T

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1.On 2 November 2018, the two applicants (“A1” and “A2”) pleaded guilty to two joint charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charges 1 and 2) before Deputy Judge Kathie Cheung (“the judge”) in the District Court. A1 further pleaded guilty to four other charges of theft (Charges 3, 4, 5 and 6), which had been laid against her alone. After hearing mitigation on the same day, the judge sentenced A1 to an overall term of 23 months’ imprisonment and A2 to an overall term of 19 months’ imprisonment, further making a compensation order in favour of the credit card company in the sum of $7,714.

2.By way of Notices of Application for leave to appeal filed on 19 November 2018, both applicants seek leave to appeal against sentence.

Facts admitted by the applicants

3.In the early hours of 13 March 2017, PW1 went to ‘The China Bar’ (“the Bar”) at the Ground Floor of 44 D’Aguilar Street, Central.  In her handbag at the time was her credit card issued by Aeon Credit Service (Asia) Company Limited (“the credit card”).  PW1 left her handbag unattended on the floor at about 3:30 am when she got up to dance.  She left the Bar with her handbag at about 6:30 am, but it was not until about 3:30 pm that afternoon that she discovered her credit card missing. 

4.Under caution, A1 admitted that she had taken the credit card after finding it on a bar table; that she and A2 then used the credit card to buy drinks at the Bar; and that she threw the credit card away after using it.  A2 made similar admissions to the effect that she and A1 had found the credit card on a bar table, bought drinks with it and then thrown it away.

5.The theft of the credit card by the applicants constituted Charge 1, whilst the use of it to buy drinks at the Bar costing $254 constituted Charge 2.  Charges 3 to 6 were concerned with the use of the credit card by A1 in respect of four other transactions on 13 March 2017, the facts of which may be summarised as follows. 

6.In the early morning of the day, a CCTV camera installed at the Chelsea Hotel, situated in Hanoi Road, Tsim Sha Tsui, captured A1 filling in a form in order to check into the hotel.  The room charge of $550 was settled with the credit card (Charge 3).  The credit card was then used to settle a transaction of $160 for a meal at the Butchers Club, also in Hanoi Road, Tsim Sha Tsui (Charge 4).  It was further used to purchase two telephones, one costing $3,750 in a shop called “Xin Hui” in Ap Liu Street, Sham Shui Po (Charge 5); the other costing $3,000 in a shop known as “Essence Digital”, also in Ap Liu Street, Sham Shui Po (Charge 6).

7.A1 admitted under caution that she had used the credit card to make the relevant payments in Charges 3 to 6.

Mitigation and sentence

8.A1 was just over 21 years of age at the time of sentence (although 19 at the time of the offences) and single.  Her father had passed away, leaving her mother and three siblings with whom she lived.  She was studying for a higher diploma in Tourism and Hospitality. 

9.A2 was aged 23 and also single at the time of sentence (and just over 21 at the time of the offences).  She lived with her stepfather, mother and two siblings.  She worked as a clerk earning about $12,000 a month, a job which I am told she has since lost as a result of her imprisonment.  A2 is the cousin of A1 and both had clear records prior to the commission of the offences.  It was submitted during mitigation that the applicants were celebrating the birthday of A1’s mother at the Bar, where the applicants had had a considerable amount to drink; as a result, they committed their respective offences opportunistically.  The applicants were willing to compensate the credit card company for the losses incurred. 

10.The judge considered that a Community Service Order was not an appropriate option for credit card offences, which called for a deterrent sentence.  In respect of Charge 1, she adopted a starting point of 6 months’ imprisonment.  For Charges 2 to 6, the judge referred to three decisions of the Court of Appeal, namely R v Chan Sui To and Anor^[1], HKSAR v Tu I Lang^[2], HKSAR v Lam See Chung, Stephen^[3]. She noted that this Court in Tu I Lang had held that in the case of a small unsophisticated operation involving only one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years’ imprisonment or less would be appropriate; and that the same tariff would apply where genuine credit cards were used in similar situations: see Lam See Chung, Stephen. 

11.The judge said that the credit card had been used on five occasions, without any marked degree of planning or organisation, in order to obtain goods or services, the value of which was not high. Accordingly, she adopted a starting point of 2½ years’ imprisonment in respect of each of the five charges (Charges 2 to 6).  The judge gave the applicants a full one-third discount for their pleas of guilty, thus reducing the starting point for Charge 1 to 4 months’ imprisonment, and for each of the remaining charges to 20 months’ imprisonment.

12.The judge regarded the payment of restitution as a mitigating factor, which entitled the applicants to a further 3-month discount on the sentence on each charge.  Accordingly, the resulting sentence on Charges 2 to 6 became 17 months’ imprisonment.

13.The judge considered that an overall sentence of 23 months’ imprisonment was sufficient to reflect A1’s criminality.  In order to achieve that objective, she ordered 2 months of the sentence on Charge 1 to run consecutively to the sentence on Charge 2, making 19 months’ imprisonment, with a further consecutive sentence of 1 month for each of Charges 3 to 6.

14.As for A2, the judge said that a total sentence of 19 months’ imprisonment would be sufficient to reflect her overall criminality.  Accordingly, she ordered that 2 months of the sentence on Charge 1 should run consecutively to the sentence on Charge 2.

15.The judge did not consider that there was any basis for any suspension of the sentences of imprisonment.  Finally, she made a compensation order of $7,714 which the applicants were jointly and severally liable to pay to Aeon Credit Service (Asia) Company Limited.

Grounds of appeal

16.Mr Shek, counsel for A1, has advanced three grounds of appeal.  He argues that the judge had failed sufficiently to consider A1’s young age at the time of the offences and at least the spirit of section 109A of the Criminal Procedure Ordinance, Cap 221, given that A1 was 19 at the time of the offences and just over 21 years of age at the time of her sentence (Ground 1).  The judge had further failed to apply her mind properly to the question of suspending the sentence of imprisonment (Ground 2).  Accordingly, and by reference to authority, the sentence passed on A1 was manifestly excessive (Ground 3).

17.Mr Thomson, counsel for A2, has similarly advanced three grounds of appeal.  By Ground 1, he argues that since the amount of money involved in Charge 2, namely $254, was very low, the offence was tantamount to a minor theft.  Further, since there was lack of evidence to show that she had taken the credit card or purchased the drinks herself, a starting point of 2½ years’ imprisonment was excessive.  By Ground 2, he complains that the sentence received by A2 in respect of Charge 2 failed to indicate her subordinate role in the offence.   By Ground 3, he avers that the judge was wrong to reject the options of a Community Service Order or a suspended sentence, given that A2 was only just over 21 at the time of the offences.

Respondent’s submissions

18.Mr Man, on behalf of the respondent, submits that, whilst A1’s age was a powerful factor in determining his sentence, the judge was nevertheless correct in imposing a deterrent sentence on her for these particular offences.  A suspended sentence was inappropriate since it did not properly reflect the seriousness of the offences in question.  He submitted that the overall sentence of 23 months’ imprisonment on A1, albeit on the high side, was not manifestly excessive.  As for A2, he accepted that the sentence was likewise on the high side but could not be said to be manifestly excessive and/or wrong in principle.

Consideration

19.I consider that it is reasonably arguable that the judge should have given consideration to the question of the applicants’ relative youth at the time of the offences, particularly where A1 was 19 years of age at the time of the offences: see Secretary for Justice v Leung Hiu Yeung[4], at paragraphs 74-76. 

20.On the question of quantum, I note that a judgment in the case of Secretary for Justice v Lam Yuk Chi Louisdeana[5] has very recently been handed down by the Chinese division of this Court, following an Application for Review of sentence by the Secretary for Justice.  Although I was not referred to this case in argument, the respondent (who was 58 years of age and of good character) faced one charge of theft of a credit card which she had obtained from a purse which someone had left in a supermarket.  She also faced four charges of obtaining property by deception for using the same credit card to make purchases of four items, including a rice cooker, some health products, and two iPhone 7’s (one of which she immediately re-sold), within one hour after she found the credit card.  After making such purchases, the respondent damaged and discarded the credit card.  In the result, the Court quashed the sentence of 20 months’ imprisonment suspended for 2 years passed at first instance, and substituted it with an overall sentence of 15 months’ imprisonment. 

21.The circumstances of the present case, at least so far as A1 is concerned, appear somewhat similar to the facts of Lam Yuk Chi Louisdeana, although, of course, A1 faced a total of six charges (two of them jointly with A2), while the respondent in Lam Yuk Chi Louisdeana faced only five.  Notwithstanding such similar facts, I note that the resulting sentence of the Court of Appeal in Lam Yuk Chi Louisdeana was eight months less than that imposed on A1, and four months less than that imposed on A2. However, it should be borne in mind that Lam Yuk Chi Louisdeana was an Application for Review of sentence, by which the Court was substituting a sentence of imprisonment for an original sentence which did not involve the deprivation of her liberty.

22.As a Single Judge, my task on an application for leave to appeal against sentence is solely to determine whether there are reasonably arguable grounds of appeal to merit the case being argued before the full Court of Appeal.  For the above reasons, I consider that it is reasonably arguable that the sentences are open to appeal.

23.Nevertheless, I would make one observation concerning Mr Thomson’s argument, as part of his Ground 2, that the evidence of A2 taking the credit card or purchasing the drinks herself was lacking.  I must point out that A2 had admitted these facts under caution, which were confirmed by her pleas of guilty to the charges.  I do not think there is any merit in this particular line of argument.

24.Nevertheless, I shall grant both applicants leave to appeal on all grounds of appeal.

Bail pending appeal

25.Given that the applicants have both served 8 months and 22 days of their sentences to date, which is the equivalent before remission for good behaviour of just over 13 months’ imprisonment, and, in particular, that A2 is due for release on 22 November this year, I am prepared to accede to the applications made on behalf of each applicant that they be admitted to bail pending their appeals.  Mr Man properly did not object to bail being granted on appropriate terms, which I have spelled out to the applicants and their families.

26.I must emphasise, however, that simply because the applicants have been granted leave and admitted to bail pending appeal does not mean that the Court of Appeal may not in due course consider that either or both of their appeals should be dismissed; in which case they, or either one of them, will have to return to prison to continue their sentences.

Mr Jonathan Man SADPP, of the Department of Justice, for the Respondent

Mr Randy Shek, instructed by Cheung & Co, assigned by the Director of Legal Aid, for the 1^st Applicant

Mr Neil Clarke Thomson, instructed by Massie Clement, for the 2^nd Applicant