HKSAR v. Hui Ching Man

CACC 146/2019

[2019] HKCA 1109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 146 OF 2019

(ON APPEAL FROM DCCC NO. 563 OF 2018)

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BETWEEN

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J U D G M E N T

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Introduction

1.On 9 April 2019, the applicant pleaded guilty to two charges of fraud (charges 2 & 3) and one charge of theft (charge 4) before District Court Judge K Lo (the judge).  On 29 April 2019, the applicant applied for leave to appeal against her sentence.  

2.The facts admitted were briefly these: the applicant worked as a travel agent.  PW2 often engaged the applicant to make travel bookings.  In early 2016, PW2 sent her credit card particulars to the applicant to settle some flight bookings.  In May 2016, PW2 accepted a quote of $30,000 for her trip to Russia and Cuba scheduled to take place in September 2016.  The payment for the trip was settled through a deposit made by PW2 to the applicant’s bank account.  However, the applicant only arranged for the tickets to be issued in September by which time the price had surged to about $108,000.  Later, when the applicant was asked to settle this amount, she provided PW2’s credit card particulars to the travel company concerned, falsely claiming that PW2 had given consent to it.  

3.Upon PW2’s return to Hong Kong on 25 September 2016, she discovered unauthorized transactions in respect of her credit card which included 3 transactions for the total sum of $108,249, the charges for her Russian trip (charge 2), one transaction of $7,800 which was an earlier booking for which PW2 had already made payment (charge 3) and 3 transactions for the total sum of $35,028.12 which were travel expenses of the applicant’s other clients.  These 7 transactions took place between 17 September 2016 and 22 September 2016, over a span of 6 days. 

4.The matter was later reported to the police.  When the applicant was arrested, she admitted having used PW2’s credit card for the transactions without PW2’s authorization. 

The Mitigation and the Judge’s Reasons for Sentence

5.The applicant has two previous convictions of theft in 2007 in respect of which she was sentenced to 120 hours of CSO served concurrently.  At the time of sentence, she was aged 38 and the court was told that she is a single parent with a son aged 6. 

6.In sentencing, the judge adopted the respective starting points of 3 years, 2 years and 9 months, and 3 years for charges 2-4.  Since the offences were committed within a few days and that the total loss to the victims was around $151,000, the judge considered that an overall starting point of 3 years and 5 months should sufficiently reflect the applicant’s criminality.  

7.In addition, the judge took the view that there had been an unreasonable delay in bringing the matter to the court, so she gave a further discount of 2 months to the applicant, resulting in an overall term of 3 years and 3 months.  This was then reduced to 2 years and 2 months to take account of the applicant’s guilty plea.  This 2 years and 2 months term was then achieved by ordering one month each of the terms for charges 3 and 4 to run consecutively to the term of 2 years for charge 2.

Grounds of Appeal

8.In her grounds of appeal and in her written submissions dated 30 April and 26 August 2019, the applicant mainly urged the court to exercise mercy on her as she is now truly remorseful and she would like to have an early release so that she could look after her elderly parents and her young son.  This morning, the applicant informed the court that she would adopt the contents of her submissions for this application and she reiterated matters which were advanced in mitigation before the judge.  These included her saying that she had volunteered to PW2 her dishonest use of PW2’s credit card before PW2 made the report to the police and also that she had repaid $8,000 to PW2 in respect of the money involved in charge 3.  The applicant suggested that these matters should earn her additional discount in sentence. 

Consideration

9.After going through the transcripts of the mitigation, I told the applicant that while the payment of $8,000 was mentioned to the judge, the prosecution’s stance, based on what PW2 said, was that the $8,000 was not such a repayment as claimed by the applicant but was a refund from the applicant to another friend of PW2.  When the judge asked the applicant’s then counsel whether a Newton hearing on that should be conducted, her counsel told the judge that he would take further instructions after which he then informed the judge that they would not advance further submissions on the $8,000 payment and that they would drop the point[1].

10.In my view, given that an opportunity was given to the defence to address the court on this repayment point but it was decided, after instructions were taken, that the matter would not be pursued further, the judge could not be criticized for not having taken it into account when passing sentence.  

11.In respect of the applicant’s stance that it was she who volunteered her dishonest act to PW2, again, the matter was canvassed before the judge and it was described by the applicant’s then counsel as some sort of surrendering[2]. However, the judge did not accept that such was a mitigating factor warranting any additional reduction and rightly so, in my view.  Clearly, whether the applicant owned up to her wrongdoings or not, the matter would soon be discovered by PW2 because the transactions would have been made known to PW2 even if the applicant just kept quiet. In the circumstances, I do not see any merit in this ground. 

12.In short, having considered the applicant’s grounds of appeal, I do not find them to be reasonably arguable.  The judge approached the sentence systematically.  Both the starting points adopted and the reductions granted are in line with the relevant sentencing principles. The overall term arrived at is also not manifestly excessive. 

13.I note that one of the applicant’s complaints in her written submissions is that, at the time when she was arrested, she was having the best part of her life as she had a stable job and she worked diligently.  If this is meant to be the difficult position she was put in because of any delay in bringing the matter to the court, then the judge had already dealt with this by granting her an additional reduction of 2 months for the delay.  If it is meant that she suffered a lot because of the arrest and the sentence imposed, then this is a matter which she should have thought about before embarking on her criminal conduct.  Her personal predicament in the present case is not any mitigating factor in view of her commission of a series of offences over a few days. 

Conclusion

14.For the above reasons, I refuse the application for leave to appeal against sentence. 

15.I now also remind the applicant of her right to renew the application before the Court of Appeal but I also warn her that should she do so, and should the Court of Appeal find no merit for the renewal of the application, the Court of Appeal might order loss of time which the applicant has spent in custody pending her appeal. 

Ms Ranee Khubchandani, SPP (Ag) of the Department of Justice, for the Respondent

The Applicant appeared in person