HKSAR v. See Chun Fat Billy

HCMA367/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA367 OF 2005

(ON APPEAL FROM KTCC 7616 OF 2004)

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BETWEEN

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Before : Deputy High Court Judge Line in Court

Date of Hearing : 8 July 2005

Date of Judgment : 8 July 2005

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J U D G M E N T

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1.The Appellant seeks to overturn his convictions on two charges of obtaining property by deception.

2.There was no dispute at his trial that he was in a jeweller’s shop along with another man when a credit card was used to purchase jewellery.  The credit cards used were stolen.

3.The issue at the trial was whether or not the Appellant knew that the other man, who actually used the card, used a card that he was not entitled to use.

4.The Magistrate disbelieved the assertion by the Appellant that he did not know, and in his Statement of Findings at paragraphs 19 and 23 he gives the two main reasons why.  The first reason was that in a video-recorded interview at answer 44, the Appellant had said, “The thing was thus:  I had a friend who had someone else’s card.  He went to buy things and asked me to accompany him”.  The second reason at paragraph 23 was that the Magistrate found it inherently improbable that a person embarking on a criminal enterprise by using a stolen credit card would invite someone, let alone someone he had only met the night before, to accompany him to make the purchases, unless that person was a party to the criminal enterprise knowing the credit card was not lawfully to be used.

5.The Appellant explains to me today, as he explained to the Magistrate below, that the reason he gave the answer at paragraph 44 was that he had subsequently, after his arrest, found out that the credit card used was stolen.  One cannot but help comment if that was the case, why on earth not say so because the choice of words is such that it indicates guilt, whereas a different choice of words, which would have been easy to choose, would have indicated innocence.

6.Whatever the right conclusion should be about paragraph 44, the second point made by the Magistrate seems to me to have overwhelming weight.  I agree with him that it is inherently improbable that the criminal took along a man he had just met whilst he was committing crime.

7.Nothing the Appellant has said to me today - and he has addressed me very nicely I might add - raises any reasonable doubt in my mind as to the correctness of the two convictions.

8.In addition to the two charges upon which he was convicted by the Magistrate, he pleaded guilty to two other charges, both of which concern credit cards.

9.The first charge was the theft of a credit card.  Someone had got the details of a cardholder and used those details to cause the credit card company to send them a replacement card, and it was anticipated when that card would be delivered.  The Appellant was watching the credit cardholder’s letterbox and stole that card.  Happily, the police were waiting for this.  There is no doubt that if they had not been, that card would have been used criminally.  This was a serious theft.

10.The other matter to which the Appellant pleaded guilty for which he received 8 months’ imprisonment was the use of another stolen credit card used to feed himself by going to restaurants.

11.The Magistrate took an 18 months’ starting point for the theft of the card from the letterbox and reduced that by a third for his plea, giving a sentence of 12 months.  There were concurrent sentences of 12 months for the matters for which he was convicted after trial, the obtaining by deceptions, and a sentence of 8 months for the use of the credit card in the restaurant.  Charges 2, 3 and 4 were ordered to run concurrently, but consecutively to the 12 months on Charge 1.  The total was 2 years.  The appeal against sentence is limited to attacking the sentence of 12 months for the theft from the mailbox.

12.I appreciated that he had a clear record, but the 18 months as a starting point for a deliberate crime such as occurred in the 1st charge of theft is not, in my judgment, open to criticism.  It is right to point out this happened in the October of 2003 after the offences in Charges 2, 3 and 4 which occurred in June of that year.

13.Never mind the individual sentences, the real question I have to address is whether, in all the circumstances, and for all the crime, the sentence of 2 years overall is too long.  In my judgment, it is not too long.  Credit card fraud is a serious matter.  It is prevalent and it causes significant loss.  The extent of the Appellant’s involvement in the use of stolen credit cards is apparent from what I have said in this judgment.  It demonstrates that his involvement was not, as was claimed, a sudden moment’s greediness.

14.The Appellant addressed me upon what he called some “authorities”, but they were, in fact, merely instances, not authorities, of other sentences other prisoners have had in circumstances of their own individual cases in the Magistrates Court.  It may be they got away lightly.  I do not know.  But hearing what he said say about them does not make me doubt the correctness of the sentence the Magistrate passed.

15.In those circumstances, in respect of the convictions on Charges 2 and 3 and the sentence on Charge 1 and, indeed, all of sentences, the appeals are dismissed and I confirm the orders made by the Magistrate.

Ms Lam Tsz-ying, Priscilia, Government Counsel of the Department of Justice, for the Respondent

Appellant, See Chun-fat Billy, (施春發), in person