R. v. Leung Kwok Chung

CAAR000005/1995

IN THE COURT OF APPEAL

Application for Review
1995, No. 5

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Coram: Power, C.J. (Ag), Bokhary & Mayo, JJ.A.

Date of hearing: 9 May 1995

Date of judgment: 9 May 1995

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J U D G M E N T

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Bokhary, J.A. (giving the judgment of the Court):

1. This is an application by the Attorney General for a review of sentence.

2. The sentence is one of eight months' imprisonment imposed by Her Honour Judge Chua in the District Court on February 6 this year following guilty pleas.

3. That sentence was arrived at by way of 11 consecutive terms of that duration: three for possession of a false instrument, contrary to s.75(2) of the Crimes Ordinance, Cap. 200; and eight for use of such an instrument, contrary to s.73 of that Ordinance. The maximum penalty for possession under s.75(2) is three years' imprisonment. That subsection covers simple possession. (Possession with intent to use is covered by subsection (1) of the same section, which lays down a maximum penalty of 14 years' imprisonment.) The maximum penalty for use under s.73 is also 14 years' imprisonment.

4. What happened was this. The respondent purchased three forged credit cards for HK$2,000 each. And during the one-month period from December 18, 1992, to January 21, 1993, he used those forged credit cards on eight occasions to pay for meals at a restaurant - the same one each time - in Tsimshatsui. The total costs of all those meals came to HK$9,233.

5. At the time, the respondent, then in his late 20's, was an insurance agent. What he was doing at the restaurant on the occasions in question was entertaining clients or potential clients. So those three forged credit cards were purchased and used in the course of business.

6. The respondent has been in trouble with the law before. In 1984, he was sentenced to five years' imprisonment for robbery. He has other previous convictions. But those are not relevant for present purposes.

7. Since the time of the forged credit card offences, a woman has given birth to a child by the respondent. And he has done the right thing by marrying her. That sort of settling down is relevant to sentence: since a sentencing judge may think, as Judge Chua seems to have thought here, that it holds some promise for better behaviour in future.

8. But deterring the particular offender is by no means the only object of a sentence. There are other things to be achieved by a sentence. And one of them is to deter other people.

9. The possession of forged credit cards is unfortunately very widespread in Hong Kong. And so is their use. The problem is a very serious one: both by its nature and by its prevalence.

10. The judge took a starting point of 13 months on each charge. On each charge, she discounted that term by about 40% to arrive at a term of eight months. And that was for guilty pleas in a case of a man being caught, as the expression goes, "red-handed". All the sentences were ordered to run concurrently.

11. The courts always show as much leniency as they can. But how much leniency a court can show is limited by its duty to the public. There are here circumstances which justify some leniency. The judge was right to be lenient. But it seems to us manifest that the degree of leniency which she showed was unjustifiably generous.

12. We would not disturb the sentences on the possession charges under s.75(2).

13. But, upon a careful consideration of the matter, we feel that our duty compels us to interfere when it comes to the sentences on the using charges under s.73.

14. All the terms - both possession and using - will remain concurrent.

15. The terms under the possession charges will remain undisturbed. After all, those charges were of simple possession only rather possession with intent to use.

16. But the other charges were of using. And the terms under the using charges are increased in this way. The starting point which we take for each of them is two years' imprisonment. For each of those terms there will be a discount bringing each down to 15 months' imprisonment.

17. The net result is that the overall sentence is increased from eight months' imprisonment to 15 months' imprisonment.

Representation:

Mr K.P. Zervos (of the Attorney General's Chambers) for the applicant, the Attorney General

Mr Patrick D. Lim (instructed by Director of Legal Aid) for the respondent, Leung Kwok Chung