HKSAR v. Cheung Florence

CACC000420/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 420
(Criminal)

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1998, No. 421
(Criminal)

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Coram: Hon. Mayo, Rogers and Stuart-Moore, JJ.A. in Court

Date of hearing: 12 January 1999

Date of delivery of judgment: 12 January 1999

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J U D G M E N T

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

1. The Applicant pleaded guilty to a number of charges in the District Court which arose out of two cases being DCCC312/98 and DCCC388/98. Her Honour Judge H.C. Wong who heard both cases one after the other sentenced the Applicant to a total of 52 months imprisonment. The Applicant seeks leave to appeal against the sentences which were imposed.

2. In DCCC388/98 the Applicant pleaded guilty to three counts of using a false instrument, three counts of theft and four counts of obtaining property by deception. The first three counts related to applications the Applicant made to different banks for credit cards to be issued in the name of her friend who resided with her. The theft and deception charges related to the use she made of the cards after she received them. She used them to purchase goods and withdraw moneys from ATMs. The total amount involved was approximately $42,000.

3. She was sentenced to 6 months imprisonment on each of the using false instrument charges. On the three theft charges, she was sentenced to 10 months imprisonment. She received 10 months for three of the obtaining by deception charges and 12 months for the fourth charge.

4. The Judge ordered that the three false instrument charges should be served concurrently. She also ordered that the three theft counts and three of the obtaining by deception counts should be served concurrently but should be consecutive to the false instrument charges and that the remaining 12-month sentence for obtaining by deception should also be consecutive to the other counts. The total sentence to be served for DCCC388/98 was accordingly 28 months.

5. In DCCC312/98 the Applicant pleaded guilty to one charge of theft and six charges of obtaining property by deception.

6. The circumstances of this case were rather different. Here she abused the trust which was reposed in her as an employee of Wharf Cable Limited. She was employed on the switchboard of the company and her duties included giving advice to customers who telephoned the company in connection with their accounts. It will be appreciated that as a consequence of her duties she had access to confidential information concerning the customers including details of their credit cards. What she did was to utilise this information to make purchases on the internet and order that the cost of the purchases be debited to the customers' accounts.

7. Although the total of the value of the goods was not included in the agreed facts it is evident that the Applicant did purchase expensive watches and jewellery on the internet.

8. The Judge sentenced the Applicant to 20 months imprisonment on the theft count and 20 months on each of the deception counts which she ordered to be served concurrently and that 10 months of these sentences should be served concurrently with the 20 months on the theft count thus making a total of 30 months. However she further ordered that 6 months of the sentences imposed in DCCC388/98 should be served concurrently with the sentences imposed in DCCC312/98 thus making the total of 52 months referred to earlier.

9. The main complaint which is made is the amount of the total sentence which has to be served by the Applicant.

10. Although the Judge does make reference to the usual 1/3 discount for the pleas she does not state what her starting point was in either case. This was very unhelpful. We would adopt the observations which we made in the HKSAR v. AU Siu-ming unreported being Criminal Appeal 347/1998. The Applicant should have been informed of the starting point in both cases.

11. What is very clear is that it is necessary to have regard to both of these cases and consider the Applicant's overall criminality.

12. She is a young woman of 23. She has been in trouble previously with the law. Her convictions were also in respect of acts of dishonesty.

13. However having said this we consider that the appropriate starting point in respect of all the offences should have been 5 years. She is entitled to the usual 1/3 discount thus leading to a total sentence of 3 years 4 months imprisonment. This total sentence can be achieved by ordering that instead of making 6 months of sentences in DCCC388/98 concurrent with those in DCCC312/98 the amount should be varied to 18 months.

14. The application is allowed. Treating it as the appeal we order that 18 months of the sentences imposed on the charges in DCCC388/98 will be served concurrently with those in DCCC312/98 thus leaving a total sentence of 3 years 4 months imprisonment. To this extent the appeal is allowed.

Representation:

Mr. Polly Wan, S.G.C. (D.P.P.) for Respondent

Mr. Robert Buchanan assigned by D.L.A. for Applicant