HKSAR v. Liu Man and Another

CACC 393/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 393OF 2004

(ON APPEAL FROM DCCC NO. 772 OF 2004)

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BETWEEN

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Before : Hon Ma CJHC and Stock JA in Court

Dates of Hearing : 8 April 2005

Date of Judgment : 8 April 2005

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.On 2 September 2004 these applicants were sentenced on their pleas of guilty to total terms of 30 months’ and 20 months’ imprisonment respectively for false credit card offences.  They now seek leave to appeal against those sentences.

2.The facts are that on 15 July 2003 Liu Man (D1 at trial) entered a jewellery shop in Tsimshatsui with two others and there purchased two jade pendants and a jade ring for a sum of $3,880 using a Visa card that was forged in another’s name.  This act formed the subject of the first charge which read as follows:

"	Statement of offence
Obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap. 210.
	Particulars of Offence
Liu Man, on the 15th day of July, 2003, in Hong Kong, dishonestly obtained from WONG Kim-man of HO Sun’s Jewellery & Jade two jade pendants and one jade finger-ring, with the intention of permanently depriving the said WONG Kim-man of the said HO Sun’s Jewellery & Jade thereof by deception, namely, by falsely representing that she was entitled and authorized to use VISA card bearing account number 4920-1900-3997-1989 in the name of WING Yee-tse and that the said credit card was genuine."

3.The agreed summary of facts stated that on the following day D1 with two others went back to the shop and purchased two jade pendants with another Visa card that was said to have been forged.  Omitted from the summary of facts and therefore not a matter that we can take into account – certainly not as against D1 – is the suggestion now drawn to our attention that two cards were used and that the value of the two pendants was $32,500.  That particular escapade did not form the subject matter of any charge but it suffices for present purposes to state that there is no suggestion that D2 was present on that occasion.

4.On 17 July 2003, D1 and another returned to the shop and the summary of facts states that they left without buying anything.  We are told in Mr Leung’s written submissions that that is not accurate and that in fact two further pendants were bought with yet another credit card.  Again, we cannot properly take into account facts not included in the summary of facts.  All that was included in that summary was the fact of D1’s visit. 

5.The next event was the visit by D1, D2 (the second applicant) and two other women to the same shop on 22 July 2003.  By this stage, the proprietor of the shop had been alerted to the falsity of the card used by D1 on 15 July, and on seeing D1 on 22 July the police were alerted and they arrived at the shop.  A forged Bank of China Visa card was seized from D1’s wallet; and two forged Visa cards in the name of Yung Shing Duen were found inside D2’s wallet, as well as an identity card in that person’s name.  The events of 22 July resulted in three further charges:

Charge 2, against D1 only, was a charge of possession of a false instrument, namely the Bank of China Visa card with the intention to use it to induce someone to accept it as genuine, contrary to section 75(1) of the Crimes Ordinance, Cap. 200;

Charge 3, against D2 only, was a charge of possession of two false Visa cards with the intention that she would use them to induce someone to accept them as genuine; and

Charge 4, against D2 only, was a charge of possession of an identity card relating to another, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177.

6.To these charges, the applicants pleaded guilty and were sentenced as follows:

(i)	in relation to Charge 1, the sentencing judge took a starting point of 30 months’ imprisonment and, giving credit for the plea of guilty, imposed upon D1 a sentence of 20 months’ imprisonment;
(ii)	in relation to Charge 2, the same starting point was adopted and the same sentence was imposed with an order that 10 months of that sentence should run consecutively to the sentence imposed in relation to Charge 1, making a total in relation to the first applicant of 30 months’ imprisonment;
(iii)	in relation to Charge 3, the judge adopted the same starting point as he had for each of the offences committed by D1, namely 30 months and, giving full credit for the plea of guilty, imposed upon that charge a sentence of 20 months’ imprisonment; and
(iv)	in relation to Charge 4, the judge took a starting point of 18 months’ imprisonment and imposed a term of 12 months, ordering two months of that sentence to run consecutively to the sentence imposed in relation to Charge 3, making a total in the case of D2 of 22 months’ imprisonment.

7.Before we turn to the grounds of appeal, there is some history touching both applicants to which we must refer.  The July 2003 offences committed by D1 were committed by her whilst on bail for an offence committed on 19 March 2002.  On that date she attempted to obtain two mobile telephones with the use of a false credit card.  She was arrested on that date and whilst on bail so that the investigations could be carried out in relation to that case and others, the present offences were committed.  For the March 2002 offences she was convicted after trial on 17 November 2003, and sentenced on 1 December 2003 to a term of 12 months’ imprisonment.  By the time she was sentenced for the offences with which we are concerned, she had served that 12-month term.  In sentencing this applicant for the present offences, the judge appears to have been under the impression that the present offences were committed shortly after her release for the 2002 offence.  How that error came to be made, we are not in a position to say.

8.The present offences were not committed by the second applicant whilst she was on bail, but in July 2002 she was sentenced to a term of 10 months’ imprisonment, again for a credit card offence, that one committed in January 2002.  It follows that the present offences were committed by her not long after her release from that term of imprisonment.  The judge noted the fact of the previous conviction, but did not suggest that it was an aggravating factor.

9.The first applicant is unrepresented before us.  Her main complaint is that the two sets of offences to which we have referred were not dealt with at the same time, and that she has thereby lost the opportunity of concurrent, or partially concurrent, sentences.  Mr Leung has provided a number of reasons why the two matters were not dealt with at the same time, but it is unnecessary in the present case for us to analyse that in any depth.  The fact of the matter is that even had the two sets of offences been dealt with at the same time, there would have been no warrant for an order other than one requiring the sentence for the July 2003 offences to be served consecutively to the sentence for the March 2002 offences.

10.We take the view that the overall sentence imposed upon the first applicant was, in the event, particularly light.  Whilst it might be said that the sentences imposed for the offences committed on 15 and 22 July 2003 were individually and collectively appropriate if one had no regard to the aggravating factor that the offences were committed whilst the first applicant was on bail, that aggravating factor called for overt reflection in the sentence, and that reflection was absent.  In the event, the first applicant can consider herself the beneficiary of an oversight.

11.There is in the event no merit in the first applicant’s application for leave to appeal against sentence and, accordingly, it is dismissed.

12.On behalf of the second applicant, Mr McGowan asserts that the starting point in relation to the third charge is too high.  We cannot, with respect, agree.  The applicant was in possession of two forged credit cards which she quite clearly intended to use and it was a matter of chance, namely the fact that the police were called, that precluded her from doing so.  Furthermore, this was a case of repetition of an offence of exactly the same kind in respect of which the second applicant had recently emerged from prison.  If anything, the starting point of 30 months’ imprisonment for Charge 3 was in the circumstances light.

13.Mr McGowan then says that for the identity card offence the judge took a starting point that was too high, and that such a term as was imposed ought to have been made to run entirely concurrently with the term imposed for the offence under Charge 3.  Given that possession of the identity card was clearly an adjunct to the proposed use of the credit cards, there is some merit in this contention but given the circumstances as a whole we do not, subject to the matter next addressed, view the totally of 22 months as inappropriate.

14.The final matter advanced by Mr McGowan is a suggested failure by the judge fairly to distinguish between the culpability of the two applicants.  He says that the judge should not have adopted the same starting point for the two applicants in respect of the offence of 22 July, because this does not reflect the first applicant’s conviction on Charge 1 nor the second applicant’s assertion, included in the summary of facts and not contradicted, that she was working for the first applicant who had given her the identity card and the two forged credit cards.

15.The fact that the first applicant committed another offence on a different date is reflected in the further fact that the first applicant has, for that reason, received a significantly higher overall sentence than has the second applicant.  Viewed in isolation, there is some merit in the contention that the starting points in relation to Charges 2 and 3 should have been different.  However, looking at the matter globally, we think that the overall sentences imposed in relation to the first and second applicants adequately reflect the differences in the culpability of these two applicants.  Accordingly, whilst in relation to the second applicant we grant her leave to appeal against sentence and treat the hearing of the application as the hearing of the appeal, her appeal against sentence is dismissed.

1^st Applicant, LIU MAN (D1), in person

Mr James HM McGowan assigned by the Legal Aid Department for the 2^nd Applicant (D2)

Mr David Leung, SGC of the Department of Justice for the Respondent