HKSAR v. Chan Ka Yin

HCMA 353/2021

[2022] HKCFI 324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 353 OF 2021

(ON APPEAL FROM ESCC 1096 OF 2021)

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Before:  Hon Campbell-Moffat J in Court

Date of Hearing: 25 January 2022

Date of Judgment:  25 January 2022

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JUDGMENT

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Introduction

1.On 15 July 2021, the appellant pleaded guilty before Peter Law, Principal Magistrate (“the Magistrate”) at the Eastern Magistrates’ Courts to one charge of using a copy of a false instrument and was sentenced to a period of imprisonment of 15 months.  By her Notice of Appeal dated 19 July 2021, she now seeks to appeal that sentence.

Brief Facts

2.The appellant attempted to open an online banking account which required the uploading of her HKID.  The HKID which she uploaded was not her own.  She had altered the ID in such a way that her own photo appeared on an ID card belonging to a male.

3.The appellant maintained that she had created the false ID card in order to obtain a welcome gift from the bank.

Reasons for Sentence

4.In his Reasons for Sentence the Magistrate firstly assessed the culpability of the appellant as equivalent to the actual presentation of a false HKID to a bank teller.  He noted that crimes using a false ID card are serious and did not distinguish the use of a copy for the purpose of an online application from the use of the actual ID before a bank employee.  As a consequence, he adopted the starting point for sentence after trial of 15 months’ imprisonment as laid down in HKSAR v Li Chang Li HCMA 935/2004, as adopted by the Court of Appeal in HKSAR v Fan King Lam CACC 220/2010. In particular, he noted that the false ID card had been used to deceive the bank into opening an account in order to obtain a gift.  This was a deliberate premeditated act, which could just as easily have been achieved honestly.

The Grounds of Appeal

5.There were no grounds of Appeal.  In court the appellant submitted that she wished simply to seek the opportunity to further mitigate.  She could point to no error by the Magistrate in respect of her sentence but sought to criticise her legal representative whom, she alleged, had not mitigated on her behalf.  I find this very hard to believe and in any event the two bases of mitigation which she sought to advance before me were confirmed as having been advanced before the Magistrate.

Analysis

6.The appellant has a substantial criminal record going back to 2008 when she was 20 years of age.  She has 16 matters related to dishonesty and dangerous drugs and has received probation, DATC and short periods of imprisonment.  Latterly, in 2020 and 2021, she was before the Courts for managing a gambling establishment.  She is now a mature woman but continues to offend.  She also knows the court system well and I do not accept that she did not give full instructions to her counsel.  Nor do I accept that those instructions would not have been followed.

Conclusion

7.The Magistrate correctly applied the relevant legal principles and had resort to the proper authorities.  The sentence which he passed was wholly appropriate to the circumstances at hand.

8.This appeal is dismissed.

9.There will be no order as to costs.

Mr Lucas Lai, PP of the Department of Justice, for the respondent.

The appellant appeared in person.