HKSAR v. Fung Wai Yip

CACC 231/2018

[2019] HKCA 1288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 231 OF 2018

(ON APPEAL FROM DCCC NO. 1017 OF 2017)

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REASONS FOR JUDGMENT

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Hon Anthea Pang J (giving the Reasons for Judgment of the Court):

Introduction

1.On 31 July 2018, the applicant (D2) pleaded guilty in the District Court to 32 charges of theft of credit cards (charges 1 to 32) and one charge (charge 33) of conspiracy to obtain property by deception which involved the use of stolen credit cards. D1 and D3 also faced the conspiracy charge and both pleaded guilty.  Upon conviction, Deputy District Judge Kathie Cheung (the judge) sentenced the applicant to the following concurrent terms:

(1)     8 months for each of charges 1 to 32; and

(2)     4 years and 4 months for charge 33. 

2.On 15 August 2018, the applicant filed a notice of application for leave to appeal against sentence.  On 3 April 2019, the application was heard before a single judge, Zervos JA, who refused the application.  The applicant then filed his renewal application on 17 April 2019 which application was heard on 14 November 2019.  At the conclusion of the hearing, we refused the applicant’s application, saying that we would give our reasons in due course which we now do.  

The facts

3.The facts admitted by the applicant revealed that he had stolen 32 credits cards from lockers in the changing rooms of public swimming pools between 1 October 2016 and 20 April 2017 (charges 1-32). 

4.On 20 April 2017, acting suspiciously, the applicant was arrested by the police together with D3 outside a public swimming pool.  At the time, the applicant had, on his person, two of the stolen credit cards and a master key which could be used to open lockers in the swimming pool.  Later, upon a house search, two other master keys for lockers of swimming pools were found in the applicant’s residence. 

5.Under caution, the applicant admitted that he had, on various occasions, used the master keys to unlock lockers and to then steal the credit cards.  Having stolen the cards, the applicant gave them, except the 2 cards found on him when he was arrested to D3.  D3 in turn gave the cards to different persons, including D1 who was arrested on 29 March 2017, for making purchases at different shops (mainly iPhones and gift cards from Apple Store). 

6.The items bought and the stolen cards would then be given back to the applicant for resale and for disposal respectively.  The applicant kept about two-thirds of the proceeds while D3 and the others shared the rest. 

7.Charge 33, the conspiracy charge, referred to an agreement amongst the applicant, D1, D3 and other persons to use the stolen cards for making purchases.  The total amount of goods involved was around HK$660,000.  There were also failed attempts to buy other items valued at HK$72,892. 

Personal circumstances and mitigation

8.The applicant was aged 35 at the time of sentence.  He was single and lived alone.  He had no previous convictions and it was submitted that he came from a good family background. However, his overseas study was terminated because the family business failed and he had to return to Hong Kong without obtaining his degree.  He then worked in the field of electrical appliances. 

9.Further, it was said that, in 2016, the applicant acted as a guarantor for a client in a transaction which eventually led to him incurring a debt of HK$800,000.  As a result, he had to borrow money from a loan shark.  Reportedly, when the applicant was unable to repay the debt, he was told to steal credit cards and was given the master keys. 

Reasons for Sentence

10.The judge started off by stressing that credit card offences were serious and had to be deterred. In particular, the judge referred to the observation made in R v Chan Sui To and Anor[1] that an accused who played an active but not necessarily a key role in a medium size operation involving between HK$50,000 and HK$150,000, with no elaborate planning and equipment, and without an international dimension, should receive 5 to 6 years’ imprisonment after trial. The judge further relied on HKSAR v Lam See Chung, Stephen[2]to conclude that the sentencing principles in counterfeit credit card fraud also applied to credit card fraud in which stolen genuine cards were used. 

11.In respect of the conspiracy charge, the judge took the view that this was a medium size operation lasting over 6 months with some planning as master keys were used to open lockers in public swimming pools; the stolen cards were shortly passed to other persons for making purchases; and the properties obtained were then re-sold with the proceeds shared.  The judge also noted that, in this case, a total of 32 cards were stolen, with 30 of them used to deceive various shops involving a total amount of HK$660,000.  As a result, the judge adopted an initial starting point of 6 years.[3]

12.Moreover, the judge took the view that the applicant, while not being the mastermind, was more culpable than D1 and D3 in that the applicant resold the purchased items and kept the majority part of the proceeds.  The judge therefore enhanced the starting point from 6 years to 6½ years in the case of the applicant.[4] 

13.With the applicant’s guilty plea, the sentence was reduced to 4 years and 4 months.

14.As for the 32 counts of theft, the judge adopted a starting point of 12 months for each charge, reducing it to 8 months for the guilty plea.  Having considered that these charges were part and parcel of the overall operation, the judge ordered the sentences in respect of the 32 theft charges to run wholly concurrently with the 4 years and 4 months’ term for the conspiracy charge.[5] 

Grounds of appeal against sentence

15.The sole ground of appeal set out in the applicant’s Form XI notice of application for leave filed on 15 August 2018 was that his sentence was far heavier than those imposed in the other cases of a similar nature. Subsequently, the applicant filed further written submissions and provided further grounds. 

16.In summary, the applicant contended that his sentence was excessive because:

(1)     the sentences passed in the other cases were shorter;

(2)     the operation in the instant case which involved the stealing and use of genuine credit cards was not as sophisticated or of such a large scale as the manufacturing and use of counterfeit credit cards in Chan Sui To[6]; and

(3)     this case should be treated as a number of small and unconnected operations involving small amounts of money and a few cards rather than a medium size operation. 

17.At the hearing, the applicant submitted that the highest overall starting point which should have been adopted by the judge in this case was one of 5½ years.

Consideration

Ground (1)

18.Although the applicant sought to convince this court that his sentence was excessive by comparing it with the terms imposed in the other cases, such comparisons were not of any assistance. 

19.In any event, the cases referred to by the applicant were not all credit card fraud cases.  They included other types of fraud, burglary and robbery.  Even for the case of HKSAR v Lee Chun Wai & Others[7] which the applicant said was of a similar nature and on which he placed particular emphasis, it involved stealing 18 credit cards from clubhouse lockers on 8 occasions by 2 defendants over 2 months, with goods valued at HK$373,000.  Therefore, it could be seen that the sentence passed in each case was based on its own factual matrix and no meaningful comparison could be made. 

20.This court has repeatedly said that: 

“...there is little or no merit in referring this Court to first instance decisions when determining appropriate levels of sentence.”[8]

21.The correct approach is:

“...to focus on the applicant’s own sentence and to examine that sentence, the route by which it was reached and the reasons that underlie it in order to determine whether the judge who sentenced him has fallen into appealable error. In the absence of appealable error all an applicant can show is that another offender in a wholly unrelated case has been treated more leniently than he. This may well be a source of grievance to the applicant, and understandable grievance at that, but it is not enough reason for this court to interfere.”[9]

Ground (2)

22.The judge had, relying on HKSAR v Lam See Chung, Stephen[10], correctly pointed out that the sentencing principles in cases of counterfeit credit card fraud were equally applicable in cases of genuine stolen cards.  The complaint of the applicant in this ground was without substance. 

Ground (3)

23.Coming back to the scale of the applicant’s operation, we agreed with the judge that it was of medium size.  The conspiracy was one involving at least 7 named persons; the use of master keys; purchases of expensive items; and covering a duration of more than 6 months. 

24.While on each occasion, the amount and the number of cards involved might not be large, it was the overall organization; the number of players; the repeated offending; and the duration of the fraudulent scheme which should be taken into account when considering the scale of the operation.  In other words, the multiplicity of the offences, the multiplicity of the characters, and the aggregate of the amounts were precisely the relevant matters which disclosed the overall scale of the operation.  If it were otherwise and if each offending were to be taken as an isolated event as suggested by the applicant, it could not in any way reflect the actual criminality and the degree of sophistication.  Therefore, the judge did not fall into any error in approaching this matter in the way she did. 

25.We are of the view that, having considered the facts and having correctly determined that it was a medium size operation, the judge could not be criticized for adopting an initial starting point of 6 years. 

26.Further, in view of the fact that the applicant played a pivotal role and was an important link in the operation, the judge was entitled to increase the sentence by 6 months to reflect this element.  While such an enhancement might be viewed as on the high side, it was one within the judge’s discretion to adopt. 

27.We should also mention that, as submitted by Ms Florrie Chan, SPP, for the respondent, the sentences for the theft charges could have been ordered to be served partly consecutively to the sentence on the conspiracy charge as stealing the cards was a separate and distinct criminal act from using them.[11]  

Conclusion

28.For the reasons set out above, the sentence was neither wrong in principle nor manifestly excessive. The renewal application was therefore refused. 

Ms Florrie Chan, SPP of the Department of Justice, for the Respondent

The Applicant appeared in person