HKSAR v. Chu Chun Man

HCMA000350/2002

HCMA350/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.350 OF 2002

(ON APPEAL FROM NKCC 1043 OF 2002)

-------------------------

-------------------------

Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 16 May 2002

Date of Judgment: 16 May 2002

-------------------------

J U D G M E N T

-------------------------

1.This is an appeal against sentence only.

2.The appellant pleaded guilty to an offence of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap. 200, in respect of which he was sentenced to 12 months' imprisonment; to an offence of possessing a false instrument, contrary to section 75(2) of that Ordinance, in respect of which he was also sentenced to 12 months' imprisonment, both offences involving forged credit cards; to an offence of assault occasioning actual bodily harm, contrary to common law & punishable under section 39 of the Offences Against the Persons Ordinance, Cap. 212, in respect of which he was sentenced to four months' imprisonment and, finally, to an offence of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210, in respect of which he received eight months' imprisonment. All sentences were to be served concurrently, except the sentence relating to the offence of assault occasioning actual bodily harm which was ordered to be served consecutively to all other offences. That is a totality of 16 months' imprisonment.

3.The facts of the case were somewhat different to those typical of offences of this sort in the sense that there was an element of violence and coercion present in the commission of the offences.

4.The facts were that the appellant and another unknown male entered a store on Nathan Road and produced a forged credit card for the purchase of a watch valued at $2,395. The manageress of the shop instructed another staff member to check the credit card with the Credit Card Centre. Whilst that staff member was checking the credit card, the appellant entered the room behind the counter where the staff member was and told her not to call the Credit Card Centre. That staff member initially ignored the appellant's request and so the appellant picked up a small hammer with one hand and grabbed the neck of an assistant of the staff member with his other hand. The appellant's accomplice also entered the room and grabbed the neck of the staff member. Both that staff member and the manageress of the shop were warned not to cause trouble. Shortly after this, a third male entered the room and both he and the other male assaulted the staff member with their fists. They then left, leaving the appellant behind. When they left, they took with them the watch. The appellant remained behind for the purposes of signing the receipt in respect to that watch. Very shortly after this, two police officers were passing by the shop, and noticed something wrong and so they entered the shop to make enquiries. At that time, the appellant was still on the premises. He was intercepted by the police and arrested. Two forged visa cards and two forged mastercards were seized from his person.

5.At the time of sentencing in respect of these offences, the appellant was already serving a sentence of eight months' imprisonment imposed upon him in February of 2002 when he was sentenced in respect of similar offences.

6.The appellant in this case complains of two things :

(1) that the sentences imposed in respect of the present offences were too severe; and

(2) that some parts, at least, of the sentences imposed in respect of the present offences should have been made concurrent with the sentence of eight months' imprisonment imposed upon him in February of this year.

7.As to his first complaint, in the recent case of R. v. Cheung Ka Woo, CACV 136/2001, the court reiterated what had been said in respect to offences of this sort many times previously. These are serious offences :

"It was well known in this jurisdiction that severe sentences were given to those who committed offences of this kind as a deterrent to others who were like-minded. The integrity of the credit card system was highly important these days and the confidence which people were entitled to place on this aspect of modern commercial life was necessarily undermined by others who attempted to beat the system by fraudulent methods : HKSAR v. Yau Wai-chun Cr App 417/2000."

8.It is also true to say as said in R. v. Chan Siu To [1996] 2 HKCLR 128 that the facts of cases such as these can vary enormously. That is perhaps particularly so for offences such as the present. Nevertheless in respect of similar individual offenders such as the present appellant, so far as the possession and use of forged credit cards is concerned, starting points of sentence have been on many occasions adopted in the range of 18 months' imprisonment : R. v. Hung Ping Wah [1998] 2 HKLR D K26.

9.That was the starting point adopted by the magistrate in respect of the forged credit card offences in this case. He apparently adopted a lower starting point of sentence for the obtaining property by deception offence of 12 months' imprisonment as he eventually imposed a sentence of eight months' imprisonment after plea in respect of that offence. Those starting points of sentence were perfectly proper. Equally proper was the discount the magistrate allowed the appellant in respect of his plea of guilty. That was the only mitigating factor available to the appellant in respect of any one of these offences.

10.Further, the magistrate adopted a starting point of six months' imprisonment for the offence of assault occasioning actual bodily harm, and reduced it for the same reason to four months' imprisonment. That was also perfectly proper, particularly considering that the assault was occasioned by a group attack.

11.The magistrate ordered that the sentences imposed in respect of the credit card offences and the obtaining property by deception offences to be served concurrently. That cannot be criticized as he took the same facts into account in arriving at his sentence for each. He ordered that the four month sentence of imprisonment for the offence of assault occasioning actual bodily harm be served consecutively to the other sentences. In my view that also was a proper approach. The facts of that offence were different in kind to those relating to the property offences and that warranted reflection as an additional sentence. The magistrate's sentences imposed in respect of each offence cannot be criticized.

12.The appellant's second complaint is that the magistrate ordered the sentences imposed in respect of the present offences to run wholly consecutively to the sentences at that time being served by the appellant for similar offences and imposed one month earlier. The magistrate's reason for doing so was that the present offences were committed whilst the appellant was on bail for those earlier offences. It is true to say that the commission of an offence by a defendant whilst the defendant is on bail is a factor aggravating the sentence to be imposed in respect of the offence committed on bail. In R. v. Kwan Kwok Cheung [1995] 2 HKC 336, Yam J said :

"In respect of whether some of the sentences should run consecutively instead of concurrently to the trafficking charge, Mr Cross for the Crown pointed out that the three offences in the second case occurred while the applicant was on bail in respect of the first case. Further, the third offence occurred while the applicant was on bail in respect of the second case. We agree with him that the two years' sentence should run consecutively to the seven years' sentence, thus making a total of nine years."

13.The court in that case concluded that the commission of an offence on bail gives good reason to order that the sentence for that offence be served consecutively to any sentence imposed in respect of the offence for which the offender was granted bail.

14.As said in Cross on Sentencing, Third Edition, page 92 :

"Such an approach not only marks the differences between the offences but sends out the message that those who are charged with offences and are granted bail, do not have a free run to commit other offences whilst on bail without facing a substantial increase in sentence. It ought , in general, therefore, to be regarded as a proper ground for making a sentence consecutive that the offence was committed after the grant of bail".

Indeed, the commission of an offence on bail, in addition to that principle, may well itself be reason for imposing an aggravated sentence in respect of that offence.

15.In the present case, the magistrate was entitled to order that the sentences in respect of the present case be served wholly consecutively to the sentence the appellant was already serving. The sentences imposed by the magistrate in the present case were neither manifestly excessive nor wrong in principle.

16.The appellant's appeal against sentences is dismissed.

Representation:

Ms Rosaline S.Y. Leung, SGC of the Department of Justice, for the Respondent

Appellant in person