Hui Kwok Ho v. R.

CACC000174/1994

IN THE COURT OF APPEAL

1994, No. 174
(Criminal)

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Coram: Hon Yang, CJ, Power, VP and Macdougall, VP

Date of hearing: 4 November 1994

Date of judgment: 4 November 1994

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.-P.:

1. The applicant was convicted after trial before deputy judge Barnes of conspiracy to obtain property by virtue of a forged instrument contrary to common law and section 75(a) of the Crimes Ordinance and was sentenced to four years' imprisonment. He now applies for leave to appeal against that sentence.

2. The applicant and his co-accused, who pleaded guilty to the charge, agreed with one Ah Ming and several other persons in early June 1992 to allow Ah Ming and his associates to use forged credit cards at the King Ngai Jewellery and Watch Company where the applicant and his co-accused were employees. As a consequence of this agreement associates of Ah Ming presented themselves at the company on 12th and 14th June that year and, with connivance of the applicant and his co-accused, used five forged credit cards to effect purchases of jewellery valued $11,000, $28,000, $32,000, $48,500 and $31,700 respectively, making a total of $151,200.

3. In each transaction the credit card sales slip bore a genuine account holder's number but the name on the slip did not match the name of the true account holder nor had it been signed by the authorized signatory. The actual card holders are residents of overseas countries.

4. When alerted to the frauds by the bank, the proprietor of the company questioned the applicant about the matter. The applicant, who has a conviction for theft in 1982, admitted that he had handled the transactions but asserted that his only involvement had been to pass the credit cards to another salesman for processing. The applicant and his co-accused then sought to persuade the salesman to say that it was he who had handled the transactions. However, the salesman went to the proprietor and told him the truth.

5. Subsequent inquiries have failed to reveal the identity or whereabouts of Ah Ming and his associates and none of the five forged credit cards has been recovered.

6. It is now submitted by Mr Grossman, who appeared for the applicant in this court but not in the court below, that the sentence of four years' imprisonment is both manifestly excessive and wrong in principle. He contended that the deputy judge erred in failing to give the applicant credit for not having been convicted of any offence since 1982; for categorizing the offence as one of "breach of trust" when the potential loss was to the bank, not to applicant's employer; and in stressing, without the benefit of evidence, the increase in the use of forged credit cards, the difficulty of detecting credit card offences and prosecuting offenders, and the serious undermining of the economic stability of Hong Kong and other places by the use of the forged credit cards.

7. Although we recognise that the deputy judge's latter assertion is somewhat exaggerated we do not accept that there is any real force in Mr Grossman's contentions. The sentence is entirely consistent with sentences passed in other cases of credit card fraud and approved by various divisions of this court. Plainly, the present fraudulent conduct constituted a breach of the trust reposed in the applicant by his employer. It is a matter of complete irrelevance that it was the bank that ultimately suffered the financial loss. Moreover, there was no need for the prosecution to produce evidence of the prevalence of this type of offence. It is only too well known. In The Queen v. Wong Fu-keung Cr.App. 5/91 (unreported) this court said:

"It is a matter of notorious fact that the illegal use of credit cards has become widespread. Those who are engaged in this type of activity can expect to be dealt with severely by the court."

and again in The Queen v. Kwai Ying-ho Cr.App. 527/92 (unreported) the court said:

"Credit cards frauds have in recent years been an insidious poison in the community. It affects a large number of citizens. It erodes the credit card system and damages Hong Kong's standing in the international community."

8. These pronouncements were reiterated by another division in the Attorney General v. Chan Piu-sang. AR 16/93.

9. Lastly, it was submitted by Mr Grossman that insufficient recognition was given by the deputy judge for her acceptance that the applicant had initially been under some pressure from the accomplices who instigated the fraudulent scheme. However, it is plain that he became an active participant and, as the deputy judge observed, corrupted a colleague by bringing him into the conspiracy. In our view there is no merit in this application. The sentence is neither manifestly excessive nor wrong in principle. The application is therefore refused.

Representation:

Mr G. Di Fazio (Crown Prosecutor) for Crown/Respondent

Mr C. Grossman, QC and C. Lam (M/S Hung Lee & Co.) for Applicant