Secretary for Justice v. Wong Che Ping

[English Translation – 英譯本]

CAAR 3/2019

[2020] HKCA 246

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 3 OF 2019

(ON REVIEW FROM DCCC 91/2019)

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BETWEEN

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Before:  Hon Yeung VP, Pang JA and M Poon J in Court

Date of Hearing:  1 April 2020

Date of Judgment:  1 April 2020

Date of Reasons for Judgment:  29 April 2020

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.The respondent Mr Wong Che Ping pleaded guilty to two counts of theft (Charges 1 and 2) and one count of possession of an identity card which relates to another person (Charge 4) in the District Court before Judge Yiu (“the trial judge”), upon which he was sentenced to a community service order of 200 hours for each charge.  The trial judge ordered that the sentences for the three charges would run concurrently and that the respondent would compensate the victim for his financial loss (“the said sentence”).

2.Having formed the view that the said sentence was wrong in principle and manifestly inadequate, and was one that fell outside the range of sentences which a judge, applying his mind to all the relevant factors, could reasonably consider appropriate, the applicant (Secretary for Justice) applied to the Court of Appeal for review of the said sentence pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221.

3.On 12 September 2019, Acting CJHC Poon (as he then was) granted the applicant leave to review the sentence, and this Court is to deal with the substantive application to review the said sentence.

4.After the hearing, we set aside the community service order that was originally imposed and in substitution thereof imposed a sentence of 10 months’ imprisonment.  These are our reasons. 

The facts

5.In the small hours of 25 July 2018, Mr Wong the victim lost his wallet containing an Octopus Card, a Citi Supplementary Card, his Hong Kong Identity Card, his driving license, and cash HK$1,000. There were 10 transactions through the supplementary card involving 76 packets of cigarettes amounting to HK$4,484 made within a short period of time before Mr Wong’s father, the owner of the principal card, reported loss to the credit card centre.

6.The respondent was not required to sign to confirm the transactions because each of them involved a small figure, but the CCTVs of the convenient stores concerned did capture the circumstances in which the respondent was making purchases with Mr Wong’s supplementary card.

7.At around 1 a.m. of 28 July 2018, the police intercepted the respondent upon finding him to be of an appearance similar to the offender in the CCTV footages.  Upon search, a new packet of cigarettes was found in the left pocket of his shorts.  Under caution, the Respondent admitted that he had picked up a wallet on the street and, out of momentary greed, purchased cigarettes with the supplementary card therein.

8.Subsequently, when the police searched the respondent’s residence, Mr Wong’s wallet, the supplementary card, 72 packets of cigarettes and cash in the amount of HK$300 were found.  The police also found an identity card relating to Mr GUPTA Dishank and his DBS credit card.

9.In the video-recorded interview with the police, the respondent admitted that, after picking up Mr Wong’s wallet, he discarded Mr Wong’s identity card and driving license before buying cigarettes in 10 transactions from different convenient stores with the said supplementary card. The respondent also admitted to keeping Mr Wong’s Octopus Card in his kitchen, spending the cash in Mr Wong’s wallet on food and keeping the remaining 300 dollars at home.  

10.The respondent further admitted that half a year prior to the said incident, he had picked up Mr GUPTA Dishank’s shoulder bag, credit card and Hong Kong Identity Card at Third Street and kept them at home.

The background and grounds of mitigation of the respondent

11.The respondent, aged 56 with a clear record, used to work as a cleaner.  When the incident took place he was living alone having been unemployed for almost two years.  Not a recipient of CSSA, he lived off his friend(s) and loans from finance company(ies).

12.The respondent said he had picked up Mr Wong’s wallet on the street and out of foolishness purchased cigarettes with the supplementary card contained in there.  The respondent sought the court’s leniency, saying the amount involved was not large and he was willing to compensate for the HK$4,000 odd involved.  

13.The respondent emphasised his remorse over the incident, and his younger sister also sought the most lenient sentence from the court so that he could turn over a new leaf as he was a kind-hearted person and filial son.

The trial judge’s reasons for sentence

14.The trial judge pointed out that thefts, especially those involving frauds with stolen credit cards, were serious.  A fraud involving the use of a false credit card, albeit simple and on a small scale, was enough to attract a starting point of three years’ imprisonment.

15.The trial judge stressed that the offences which the respondent had committed were extremely serious, in that he purchased 76 packets of cigarettes in 10 transactions amounting to HK$4,000 odd with Mr Wong’s supplementary card within just two hours.  The trial judge also pointed out that the respondent had committed the offence repeatedly within a short time by exploiting the loophole where signing by the cardholder was waived in small transactions. 

16.The trial judge, however, also underlined the respondent’s clear record.  Taking into account his incarceration for over a month, the trial judge gave him a chance to rebuild his life and work.  Despite the objection of the probation officer, the trial judge still decided to dispose of the respondent with a community service order of 200 hours in total.

17.In making the above decision, the trial judge stressed that the theft of Mr Wong’s wallet and the properties therein was only “theft by finding”.  Regarding the possession of Mr GUPTA Dishank’s identity card, the respondent was not an illegal immigrant or overstayer.  He only kept the identity card at home without ever using it.

18.The trial judge’s way of dealing with the respondent shows that in his view, the theft of Mr Wong’s wallet and Mr GUPTA Dishank’s identity card was not particularly serious in nature, and therefore a relatively merciful approach could be adopted to deal with him in sentencing.

The applicant’s stance and grounds

19.It is the applicant’s stance that theft of someone else’s credit card is enough to attract an immediate custodial sentence.  The involvement of fraud with the stolen credit card aggravates the offence.  Ms Ng, Senior Public Prosecutor for the applicant, stressed that not only should the court take into account the potential loss arising from these offences, but it must pass a deterrent sentence, otherwise the integrity of the credit card system would be unsustainable, and the loss and inconvenience caused to the victim could not be fully reflected.

20.Ms Ng stated that even for a simple credit card fraud, its starting point in sentence could be as high as 3 years’ imprisonment. She emphasised that the respondent had not only stolen Mr Wong’s wallet containing his identity card, driving license, cash and supplementary card, he had also purchased 76 packets of cigarettes in 10 transactions from different convenient stores within a short time, taking advantage of the convenience offered by the waiver of signature to avoid the risk of being exposed by a false signature.  Ms Ng referred to the following observation made by the Court of Appeal in Secretary for Justice v Lam Yuk Chi Louisdeana (CAAR 4/2018):

“We reiterate that what makes this case serious is that immediately after stealing the credit card in question, the respondent made four purchases, including 2 iPhone 7s.”

21.Ms Ng stressed in her submission that the victim suffered an actual loss of over HK$4,000 dollars, and not only that, there was also a potential loss of over HK$200,000 because of the credit limit of the supplementary card in question.  Therefore, even for the offences involving the credit card alone, a community service order was not enough to reflect the gravity of the matter.  

22.Ms Ng pointed out that the offence of possession of an identity card which relates to another person also warranted a custodial sentence.  She referred to the following observation made by the Court of Appeal in HKSAR v Lau Kwok Wo (CACC181/2008):

“The Applicant is neither an illegal immigrant nor an overstayer in possession of a forged identity card or an identity card relating to another person. As Mr. Wong correctly pointed out, the Applicant was a Hong Kong permanent resident and so he must have his own identity card. By possessing a forged identity card, the Applicant must have his purpose. We do not intend to speculate his purpose. But he was certainly up to no good. In view of these, the Applicant’s offence of possessing a forged identity card is no less serious than an illegal immigrant or an overstayer possessing a forged identity card or an identity card relating to another person for finding a job or extending his stay.”

23.With reference to cases including HKSAR v Li Chang Li [2004-2005] HKCLRT 193 and HKSAR v Fan King Lam (CACC 220/2010), Ms Ng was of the view that possession of an identity card relating to another person itself was enough to attract 12 months’ imprisonment upon a guilty plea.

24.Ms Ng reiterated that, given the respondent’s background, including his long-term unemployment, unlikelihood to be employed, as well as the objection from the probation officer, a community service order was not an appropriate way to deal with the offences committed by the respondent.

25.Ms Ng asserted that it was inappropriate and manifestly inadequate to sentence the respondent by way of a community service order. In her opinion, the only appropriate sentence was immediate imprisonment with a total term of not less than 15 months.

26.Ms Ng referred to a number of authorities to support her stance.

The respondent’s stance

27.The respondent reiterated that he felt remorseful and conscience-stricken for the offences he had committed.  He said that after the incident he had found a job as a janitor foreman with an income enough to make ends meet and repay some of his debts.  He also told the court that he picked up someone’s wallet again in November last year, and instead of keeping it for himself, he reported it to the police, and it was eventually returned to its owner.  For the foregoing reasons he asked the court for leniency.

The court’s view

28.We agree that the respondent was not a recidivist but an opportunist who could not resist the temptation after picking up Mr Wong’s wallet and committed the crime.  We also agree that the respondent deserves credits for his self-improvement since the incident.  However, frauds against shops with a stolen credit card are extremely serious offences, of which the culpability should not be downplayed but instead, calls for a deterrent sentence.  The appropriate sentence for such offences is immediate imprisonment for a considerable [length].  In fact, the Court of Appeal has dealt with many similar cases by way of immediate custodial sentences.

29.In Lam Yuk Chi Louisdeana cited by Ms Ng, the defendant made four purchases including two expensive iPhones with the credit card contained in the key pouch within an hour since she picked it up, and she resold one of the iPhones at half price to a street vendor.  The observation made by the Court of Appeal when dealing with the application to review her sentence is also applicable to the present case:

“28. This case is by no means ‘theft by finding’, which generally refers to thefts involving anyone who keeps the property that they picked up. The respondent, after picking up the victim’s key pouch, first disposed of some of the properties, and then made four purchases amounting to HK$14,000 with the credit card that she had illegally obtained within a very short time, including two iPhone 7s, one of which was resold below half price before long…

29. …The court should point out that there is no latent risk of a huge financial loss because the applicant (sic) cut and discarded the credit card in question after making four purchases within a short time.”

30.In respect of that case, the Court of Appeal was of the view that the appropriate sentence overall was 15 months’ imprisonment upon the defendant’s guilty pleas to one count of theft and four counts of obtaining property by deception. 

31.In HKSAR v Dai Xiangfei (CACC 169/2018), the defendant was a mainland visitor.  She stole a wallet in a luxury store and further took away another customer’s credit card with which she made two purchases right away amounting to HK$1,730.  In respect of the three charges regarding the theft of credit card and the two purchases, the defendant was sentenced to 27 months’ imprisonment upon a 25% discount given for her guilty pleas.  As for the charge regarding the theft of wallet, the defendant was given a one-third discount for her guilty plea and sentenced to 6 months’ imprisonment, with three months of which to run consecutively with the said 27 months, resulting in 30 months’ imprisonment in total.

32.Despite the defendant’s status as a visitor being an aggravating factor and her additional charge for a count of shoplifting, we do not see much difference in terms of culpability between the respondent and that defendant.

33.Apart from stealing Mr Wong’s supplementary card and making multiple purchases with it, the respondent was also in possession of Mr GUPTA Dishank’s identity card, a matter which the court is not to overlook.  He even discarded Mr Wong’s identity card and driving licence, causing huge inconvenience to him.

34.It has been stressed by the Court of Appeal that document of identity is not a plaything or collector’s item, and it is highly likely that there is an unlawful purpose for possessing someone else’s identity card.  Therefore, possessing an identity card relating to another person may also attract 15 months’ imprisonment even after a guilty plea.  (See cases such as HKSAR v Li Chang Li and another [2005] 1 HKLRD 864 and HKSAR v Lau Kwok Wo, CACC 181/2008).

35.Having considered the background of the case, the circumstances of the respondent, and also the submission he made to this Court, we are of the view that it is necessary to revise the said sentence since, no matter in terms of individual charges or as a whole, the said sentence departed greatly from the sentences imposed in other similar cases, it was wrong in principle and manifestly inadequate, and fell outside the range of sentences which a judge, applying his mind to all the relevant factors, could reasonably consider appropriate.

36.In our view, the starting points for the first and second counts of theft should be 9 months’ and 2 years’ imprisonment respectively, and that for the fourth count, i.e. possessing identity document relating to another person, should be 12 months’ imprisonment.  The appropriate starting point for the three charges overall is 30 months.

37.Given the respondent’s guilty pleas, a one-third discount should be applied to the above starting points, making them 6 months, 16 months and 8 months respectively and the overall starting point for the sentence should be 20 months’ imprisonment.

38.The respondent has compensated the victim and served over 50% of the community service order.  He will also suffer an additional ordeal due to the review of sentence.  For these two reasons, a further deduction of 10 months is given to the respondent, making the final sentence one of 10 months’ imprisonment.

39.In respect of the three charges, we impose 4 months, 8 months and 4 months respectively as their sentences.  One month out of the four months for each of Charges 1 and 4 is to run consecutively with the 8 months for Charge 2, while the remainder of the sentences are to run concurrently.  The respondent is to serve a total of 10 months’ imprisonment.

40.We must stress that the above sentence is already extremely merciful to the respondent, which is imposed on the basis of the special circumstances in the present case.

Conclusion

41.The applicant’s application to review sentence is allowed.  Except for the compensation order which is upheld, the original sentence is quashed and substituted with the above sentence.

Ms Hermina Ng, Senior Public Prosecutor and Mr Derek Lau, Senior Public Prosecutor, of the Department of Justice, for the applicant

The respondent, unrepresented, acting in person

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.