HKSAR v. Yau Wai Chun

CACC000417/2000

CACC 417/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 417 OF 2000

(ON APPEAL FROM DCCC 760 OF 2000)

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Coram: Hon Stuart-Moore VP and Wong JA

Date of Hearing: 9 February 2001

Date of Judgment: 9 February 2001

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 14 September 2000, the Applicant pleaded guilty in the District Court before Judge M. Yuen to charges of possessing an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177, and attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance, Cap. 210, and section 159G of the Crimes Ordinance, Cap. 200. Following an adjournment for the purposes of obtaining a medical report and a probation officer's background report, on 28 September 2000 the judge imposed an overall sentence of two years and three months' imprisonment.

2. The Applicant now seeks leave to appeal against her sentence.

3. The facts were simple. On 23 April 2000, the Applicant and a male companion used a forged Sin Hua Bank Visa credit card, in the name of Tang Lai-a, for the purpose of buying a video camera valued at $15,000 at the UNY Department Store in City Plaza, Taikoo Shing. The observant salesman who served them noticed that the hologram, which is one of the identifying features of a genuine visa card, was missing. He then made a check with the card centre. When the Applicant saw the salesman doing this, she requested him to cancel the transaction and return the card to her. The salesman ignored the Applicant's request and called for a security officer to attend. The Applicant and her male companion then quickly left the scene.

4. The man who had been accompanying the Applicant made good his escape but the Applicant was arrested by a security guard. In the meantime, the salesman had received confirmation from the card centre that it was a counterfeit card which had been used by the Applicant.

5. The Applicant was taken to the security section of the department store where she took out a black wallet and offered to pay for the camera. Police arrived soon afterwards and her black wallet was searched. Two other forged credit cards were found inside which also bore the name "Tang Lai-a".

6. In mitigation, the judge was invited to consider making a non-custodial sentence on the basis that the Applicant suffered from a life-threatening blood disease. However, the medical report, which the judge out of a sensible abundance of caution had ordered, did not suggest that the Applicant was imminently threatened by serious disease. Furthermore, the probation report did not assist the Applicant because this suggested that she had failed to gain any insight into her problems which stemmed from her "avarice for easy money".

7. The judge took a starting point of twelve months for the identity card offence and three years for the attempted obtaining of property by deception. Giving credit for the Applicant's clear record and pleas of guilty, the judge stated that she intended to give a one-third discount and expressed the sentences in these terms:

"For the charge of possession of an ID card relating to another, I will impose instead a term of nine months' imprisonment.

For the charge of attempting to obtain property by deception, I will impose a term of 2 years instead. The two offences are very much interwoven, though there is no evidence before me that they were part and parcel of the same transaction.

For the totality of the events, I will order the term of 6 months of the 2 year sentence for the (2nd) charge to run concurrently with the (1st) charge, making a total term of 2 years and 3 months."

8. Obviously, the judge made a slip when imposing nine months on the first charge when eight months would have represented a one-third discount. As this was an error of principle, we propose to correct it by giving leave to appeal and reducing the sentence to take to give effect to the proper discount. We are somewhat surprised that this elementary and obvious slip on the part of the judge was not immediately picked up by counsel in the court below, where both sides were legally represented, so that the matter could be corrected without delay and to avoid the necessity of appeal.

9. As it happens, however, the grounds of appeal made no positive reference to this aspect of the sentence, concentrating instead on a criticism of the imposition of a partly consecutive sentence in circumstances where the two offences were closely linked. Mr Paul Tong, on the Applicant's behalf, also argued that the judge had given the Applicant's ill health and previous good character insufficient weight, although in the course of argument he placed very little emphasis upon the second aspect of the latter submission.

10. We have been unable to see any force in these arguments. In R v Chan Sui-to and Another [1996] 2 HKCLR 128, where some guidance was given in regard to sentencing in cases involving the fraudulent use of credit cards, the court stated at page 134A:

"Allowing for the different facts and the varying degrees of culpability, it is impossible to formulate a set of principles of sentencing from those decisions. We think however it would be helpful to the courts if they were guided by some criterion. We would therefore suggest that an accused who plays an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of five to six years after trial. Sentences may be adjusted upwards or downwards according to circumstances.

The sum of money involved is of course only one of the factors to be taken into account. It is not even the most significant factor."

11. As a corollary to this, the court stated in HKSAR v Ng Swee Thiam and Others [2000] 1 HKLRD 772 at 778, that it was the "potential for losses" which was the most important consideration in that case. This, it should be said, will often have relevance, as it does in the matter presently before us. It has long been recognised in Hong Kong that those who indulge in fraud of this kind can expect to be given severe sentences as it erodes the confidence which people are entitled to have in a society where great dependence is placed on the credit card method of payment. (See: Attorney General v Chan Piu-sang and Another [1994] 1 HKCLR 211).

12. On the facts of the present case, the Applicant was attempting to carry out this fraud with another person. She had used a card in an attempt to obtain goods of relatively high value and she was admittedly in possession of two other counterfeit cards apart from the identity card which provided her with a false name. We think that the sentence imposed by the judge on the second charge was not open to any criticism and Mr Tong does not seek to argue otherwise, save for his submission relating to the Applicant's poor health.

13. Turning to the question related to whether it was proper for the judge to have imposed a partly consecutive sentence for these closely linked offences, we take the view that provided the judge passed a sentence which in its totality was a proper one, there was no breach of principle involved in the course she adopted. The possession of another's identity card had in all probability been to further the offence of obtaining by deception in the event that she was asked for proof of her identity. This, however, can only have added to the Applicant's degree of criminality. In HKSAR v Poon Cho-shu CACC 55/2000 (unreported), which related also to the fraudulent use of credit cards and the possession of another person's identity card, this court specifically declined to interfere with the consecutive sentence in respect of the identity card offence.

14. Turning finally to the question mark over the Applicant's health, we consider that subject to the unintentional error made by the judge on the sentence she imposed on the first charge to which the Applicant had pleaded guilty, a one-third discount was all that the Applicant was entitled to receive in respect of her pleas and good character. The medical report which was placed before the court gave no cause for immediate alarm in the Applicant's state of health. On the contrary, it stated in terms that the Applicant's general health was "fair and satisfactory". No report was placed before us to suggest that this was an inaccurate assessment. In the event that there is any sudden turn for the worse, this will be a matter for executive clemency if this is deemed to be appropriate.

15. Accordingly, for the reasons we have given, we shall grant leave. Treating the hearing as the appeal, we shall reduce the overall sentence of two years and three months to two years and two months in order to give full effect to the discount of one-third on the first charge where the judge, instead of imposing eight months, mistakenly passed nine months. The sentence on charge 1 is therefore reduced to eight months. The sentence on the second charge remains unaltered. The appeal, as we have said, is allowed to the extent that the overall sentence will now be two years and two months' imprisonment.

Representation:

Mr Alex Lee, SGC, of the Department of Justice, for the Respondent.

Mr Paul Tong, instructed by Legal Aid Department, for the Applicant.