HKSAR v. Chiang Kam Wing and Another

CACC 292/2021

[2022] HKCA 1333

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 292 OF 2021

(ON APPEAL FROM DCCC NO. 214 OF 2021)

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BETWEEN

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Before:  Hon Anthea Pang JA in Court

Date of Hearing:  2 September 2022

Date of Judgment:  2 September 2022

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J U D G M E N T

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Introduction

1.The applicants (D1 and D2)  apply for leave to appeal against sentence following their pleas before District Judge Tam (“the judge”)  to the charges below and in respect of which D1 was sentenced to 42 months’ imprisonment and D2 to 35 months:

(a)  Charge 1 (against D1 only): theft of 3 bank cards[1];

(b)  Charge 2 (against D1 and D2): Possession of 10 identity cards relating to other persons[2];

(c)  Charge 3 (against D1 and D2): Handling stolen goods, namely 18 credit cards, 3 bank cards, 3 cheque books, 7 Home Visit Permits, one HK-Macau Exit-entry Permit, 3 driving licences, two passports and 3 other personal documents[3].

Summary of facts

2.On 27 August 2020, when D1 was stopped by the police, he was found to have in his trouser pocket a bank card belonging to Ho Lai Kun (“Ho”).  D1 alleged that he had picked it up at an un-recalled location a few days ago.  When the police later conducted a search in a hotel room which was booked by D1’s girlfriend, D2, two other bank cards of Ho were found in the drawers of a desk in the room.  According to Ho, his wallet containing the 3 bank cards was missing from his rucksack on 23 August 2020.  (Charge 1)

3.During the search, the police also found the subject matters of Charge 2 and those of Charge 3 in the drawers or on the desk.  The items belonged to some 26 owners and were confirmed to be either lost or stolen. 

4.When being cautioned, D1 stated that the identity cards and credit cards were stolen by him and he used them to transfer money, claiming, however, that no other persons were involved.  D2 denied knowing anything about the matter and alleged that the identity cards, credit cards and cheque books were brought there by D1. However, the police later found photos and videos in the mobile telephones of D1 and D2 in relation to some of the identity cards in question. 

Mitigation and sentence

5.D1 and D2, aged 41 and 39 respectively at the time of sentence, were both educated to Form 5 level. D1 had 6 previous convictions, 5 of which were dishonesty-related and the convictions were recorded in 2016 for which he was sentenced to a total term of 57 months.  As for D2, 2 of her 8 previous convictions were also dishonesty-related and were recorded in 2001/2002.  They had a 1-year-old son out of their relationship with two other sons born out of D2’s previous marriages. 

6.Regarding Charge 1, the judge rejected counsel’s submission that it was a case of theft by finding and adopted a starting point of 18 months, then enhanced it by 3 months on the basis of D1 being a recidivist.  After a reduction of one-third for D1’s plea, the judge passed a sentence of 14 months. 

7.For Charges 2 and 3, the judge adopted a starting point of 24 months and 45 months respectively, he then enhanced each by 3 months on the basis of joint enterprise.  Further, in the case of D1, the judge ordered a further enhancement of 3 months for each charge to reflect that he was the mastermind and a recidivist. 

8.After giving them a one-third reduction, the judge sentenced, in respect of Charge 2, D1 to 20 months’ imprisonment, and D2 to 18 months’ imprisonment; and in respect of Charge 3, D1 to 34 months’ imprisonment, and D2 to 32 months’ imprisonment. 

9.The judge noted the mitigation that 7 of the identity cards in Charge 2 could have been the subject of Charge 3 for there were 7 common victims between the two charges but found that there was an extra layer of criminality in that D1 and D2 “could do a lot more with an ill-gotten HKID card’.  This, in the judge’s view, also explained why Charge 2 was separately laid.  In the end, the judge considered that the two charges should warrant some degree of consecutiveness in the sentences and he also remarked that “Charge 1 stands completely separate from the rest (of the charges)”. 

10.Accordingly, the judge ordered as follows:

(a)  (In the case of D1)  3 months for Charge 1 and 5 months for Charge 2 were to run consecutively to the sentence of Charge 3, making a final sentence of 42 months. 

(b)  (In the case of D2)  3 months for Charge 2 were to run consecutively to that of Charge 3, making a final sentence of 35 months. 

Grounds of Appeal

11.Ms Olivia Tsang, for D1 (here but not below), advanced 4 grounds of appeal:

(a)  Ground 1: The judge unjustifiably rejected D1’s claim of theft by finding and that even if it was theft by pickpocketing, the starting point should not have exceeded 15 months’ imprisonment, citing HKSAR v Ngo Van Huy[4].  Thus, the judge erred in taking 21 months as the enhanced starting point for Charge 1. 

(b)  Ground 2: The judge erroneously concluded that “Charge 1 stands completely separate from the rest” as, in his earlier exchanges with D1’s counsel, he had commented that the items in Charges 1 and 3 were obtained by D1 under similar circumstances.  Therefore, the judge should not have ordered 3 months for Charge 1 to run consecutively. 

(c)  Ground 3: The judge erroneously ordered 5 months for Charge 2 to run consecutively as there was no evidence to show that D1 had used (or intended to use)  the identity cards for any illegal purpose other than his admitted purpose of money transfer. 

(d)  Ground 4 was the general complaint that the final sentence of 42 months was manifestly excessive. 

12.Ms Priscilia Lam, for D2 (here but not below), advanced 2 grounds of appeal:

(a)  Ground 1: Given that D2 was a mere handler, the 4-year enhanced starting point for Charge 3 was excessive and that the judge should have adopted one in the range of 18 to 24 months. 

(b)  Ground 2: Since all the identity cards were found in the same place as the other stolen items in Charge 3 and that, in terms of illegal use, an identity card is no different from a travel document, the judge erred in concluding that there was an extra layer of criminality.  Further, as D1 admitted stealing the items without D2’s involvement, the judge erred in ordering, in the case of D2, 3 months for Charge 2 to run consecutively. 

Consideration

13.Ms Tsang’s ground 1 could be dealt with shortly.  Given D1’s admission that the identity cards and credit cards found in the hotel room were stolen by him with no specific mentioning of picking-up any of those and given the overall circumstances in which the bank cards were found in the possession of D1, the judge was entitled to reject D1’s out-of-court assertion that he had merely picked up the bank cards, especially in the absence of evidence to the contrary.  Ms Tsang’s reliance on pickpocketing authorities could not, in my view, take the matter further because the judge was justified to conclude that the theft in Charge 1 was relatively serious since 3 bank cards were involved, and that D1 was clearly intending to make use of them to obtain money based on his admission and that he had actually taken one bank card out when he was stopped in the street.  In the circumstances, I do not find it reasonably arguable that the starting point of 21 months adopted for Charge 1 was manifestly excessive. 

14.In respect of Ms Tsang’s ground 2, again, I do not see any justifiable complaint about the partly consecutive sentence.  The judge’s comment about the bank cards in Charge 1 was made in the course of questioning defence counsel’s suggestion that only the 3 bank cards out of the whole lot of stolen items were picked-up.  At no stage did the judge indicate that the charges should warrant a concurrent term.  Therefore, there was no self-contradiction as suggested by Ms Tsang.  In fact, Charge 3 related to the joint handling of a number of different items whereas Charge 1 was about D1’s theft of the 3 bank cards only.  In the circumstances, the judge’s description that “Charge 1 stands completely separate from the rest” was correct.  It was also correct for the judge to conclude that part of the sentence for Charge 1 should run consecutively in order to reflect that the offences were committed on different occasions and that there was an added criminality of D1’s theft to his act of handling the other items. 

15.For ground 3, the argument failed, in my view, for two reasons.  Firstly, an identity card no doubt contains more personal information than a credit card.  The inconvenience and the risk associated with the loss of an identity card is not difficult to imagine.  D1’s admitted purpose of money transfer is, in the circumstances, just one aspect concerning the loss of an identity card and there are certainly other implications for which penalty could legitimately be imposed.  Secondly, if the identity cards in Charge 2 were added to the stolen items in Charge 3, the latter charge would no doubt warrant a much higher starting point than as the charge was currently framed.  In other words, the additional criminality in relation to handling stolen identity cards would need to be reflected one way or the other and the judge’s ordering of partly consecutive sentence for Charge 2 did serve that purpose. 

16.In respect of Ms Lam’s ground 1, the description of D2 being a “mere handler” must be examined in context.  In the present case, we are talking about the handling of a variety of stolen items: credit cards, travel documents, cheque books, and bank cards. Given the different names appearing on the items, it must have been obvious to D2 that they came from different persons.  In fact, some 26 persons were involved.  Further, D2 was the one who kept the only key to the hotel room which could be described as a safe haven for this large amount of stolen items.  No doubt, D2 must also have been aware of the seriousness of the theft of these items and the potential gain which could be derived from the stolen properties, and it was in such circumstances that D2 received them, according to her, from D1 for joint custody or further handling.  As pointed out in R v Bernard Webbe &Others[5] cited in HKSAR v Cheng Chi Wai[6] relied on by Ms Lam, these are certainly aggravating factors which the judge was entitled to take into account when considering the appropriate starting point. 

17.Having put the matters in context, I see nothing objectionable for the judge to adopt a starting point of 4 years for Charge 3 in the case of D2.  Ms Lam’s suggestion that since the culpability of D1 was much higher than that of D2 and therefore the 3 months’ additional term did not fully reflect their different roles would not assist D2.  If that suggestion was correct, it would only mean that D1 had got a windfall, not that the sentence of D2 was manifestly excessive.  In any event, the judge had, in my view correctly, enhanced D1’s sentence for his role of being the master-mind and a recidivist. 

18.As regards Ms Lam’s ground 2, I repeat my observations above in relation to Ms Tsang’s ground 3.  I do not agree that Charge 2 was simply part and parcel of Charge 3 with the result that the two sentences should be served wholly concurrently. 

19.In the course of submissions, both Ms Tsang and Ms Lam tried to draw a comparison between the present case and the ones dealing with similar or identical offences.  However, as the facts in the cases could not be identical, no meaningful assistance could be derived from the exercise.  For instance, in the case of HKSAR v Shum Chung Wai[7], both genuine and forged credit cards were involved and the starting point of 6 years for each of the forgery charges was not disturbed whereas in the present case, although no forged credit cards were found, the number of credit cards and identity cards involved were much greater than that in Shum[8].  Therefore, no direct comparison could actually be made. 

Conclusion

20.In short, it is my view that the overall term of 42 months for D1 and the overall term of 35 months for D2 were neither manifestly excessive nor wrong in principle.  Their applications for leave to appeal against sentence are thus refused. 

21.The applicants have the right to renew their applications before the Court of Appeal but a warning is now given to them that should they do so, and should the Court of Appeal find no merit in respect of their renewal applications, the Court of Appeal may order loss of time which the applicants have spent in custody pending their appeals.

Mr Michael Tsang, SPP, of the Department of Justice, for the Respondent

Ms Olivia Tsang Oi-kei, instructed by M/s Vitus Lawyers, assigned by the Director of Legal Aid, for the 1^st Applicant

Ms Priscilia Lam Tsz-ying, instructed by M/s Fung Wong Ng & Lam LLP Solicitors, assigned by the Director of Legal Aid, for the 2^nd Applicant