HKSAR v. Terahara Yoshio

CACC000495/2000

CACC 495/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 495 OF 2000

(ON APPEAL FROM DCCC 990 OF 2000)

______________

______________

Coram: Hon Stuart-Moore VP and Mayo VP

Dates of Hearing: 30 May 2001

Date of Judgment: 30 May 2001

_______________

J U D G M E N T

_______________

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

1. On 24 November 2000, the Applicant pleaded guilty before Judge Day to three charges (1, 3 and 5) on the charge sheet each alleging the use of a forged instrument contrary to section 73 of the Crimes Ordinance, Cap 200 and a further charge (7) of possessing false instruments contrary to Section 75(1) of the same Ordinance. The Applicant was sentenced to concurrent terms of 32 months' imprisonment on each of the charges. He now seeks leave to appeal against the sentence.

2. The Applicant is a Japanese national who came to Hong Kong in early August 2000. He used the same forged credit card on 5 August 2000 on two occasions to purchase luxury goods at separate branches of Louis Vuitton valued at about $20,000. When the Applicant returned to Hong Kong in late August, he repeated his earlier conduct at the branch he had visited in relation to charge 1, but he used a credit card in a different name. He tendered the card in payment for approximately $11,000 worth of goods. A singularly alert and observant member of the staff recognised the Applicant in the shop. She called a security guard and the police were alerted. She also tried to delay the Applicant's departure from the shop. Perhaps this last action aroused the Applicant's suspicions because he left the store without waiting for the goods he had selected. As he went out of the doors of the shop, he walked straight into the arms of the police. He was later searched and a further four visa cards and two JCB gold cards were found in his wallet. These were all counterfeits.

3. In passing sentence, the judge referred to the Applicant as being 27 years old, unemployed, unmarried, and claiming to be of previous good character in Japan. The judge went on to say:

"The defendant is clearly part of a professional gang and says he was recruited by a syndicate for this purpose. As a professional thief, he presumably regards the inevitable prison sentence as one of the risks of the job and he will not be disappointed." (Tr. p. 12)

4. The judge went on to express with care that he was sentencing the Applicant only for the offences which had been admitted by the Applicant and not other offences committed by whoever used the same cards on other occasions.

5. The judge continued by saying:

"The significance of the six cards (in charge 7) is that it makes it plain, should it be needed, exactly what this defendant was up to. If he had not been stopped, he would have bought more luxury goods - why else would he have the six cards? He is a professional thief who has travelled from Japan to Hong Kong to use false credit cards to buy luxury goods and presumably to take them back to Japan for resale." (Tr. p. 12)

6. A little later after reviewing R v Chan Sui-to CACC 115/96, the judge finally said:

"There was certainly a degree of planning here. The defendant had come from Japan twice to buy the same sort of luxury goods, armed overall with seven false cards. He had been recruited to do so, he says, by a syndicate. The international dimension is self-evident. The defendant says he was not the mastermind in this operation but certainly he was the one presenting the cards to the shops. If he were the mastermind, then a sentence would be appreciably higher. Nevertheless, syndicates, such as are referred to here, cannot operate without someone presenting the cards and buying the goods. He may not be a senior member of the operation but he is essential to it. He says he was paid 20 per cent of the value of the goods obtained. He stood to earn a not inconsiderable sum if he had succeeded in using all the cards. A man who goes shopping on two occasions in one month with a total of seven false cards at his disposal is taking part, I would suggest, in a small to medium-sized operation.

The value of the goods obtained was not huge but as the court said in Chan Sui-to, that is only one of the factors to be taken into account and here it is not the most important factor. There can be no doubt that if this man were not recognised on 28 August, he would have embarked on a serious shopping spree with the cards. Why else would the syndicate go to the expense of flying him to Hong Kong, accommodating him here and providing him with six false cards all bearing Japanese names? It is fortunate that the sales assistant was alert.

Those who choose to come to Hong Kong from overseas bearing false credit cards should be aware that their presence here is not wanted and that their activities will meet with condign punishment from the courts.

The proper approach to arriving at a sentence in a case like this is to take an overall starting point, taking totality into account and then to impose the same concurrent sentence on each charge. An operation of this size with the amount of planning and the international dimension evident in this case warrants a starting point of 4 years' imprisonment. His guilty plea warrants a reduction of one-third but there is no reason to reduce it further.

The sentence is 32 months on each, all concurrent." (Tr. pp. 13-14)

7. We have deliberately chosen to cite most of what was said by Judge Day because his words ably express all of the factors which in combination led to a starting point which the Applicant, in our judgment, richly deserved.

8. The matter was listed for leave to appeal before a single judge of this court on 30 March 2001. The application was refused. The Applicant renewed his application on 10 April 2001 and he forwarded his grounds for doing so in an application for reapplying for legal aid.

9. At the outset of the hearing, we indicated that we would not grant legal aid. The Applicant's main points, which he set out in his letter dated 24 May 2001, some of which he developed in this court today, were firstly that he was not a member of a criminal syndicate because no syndicate existed at all. This assertion is contrary to what the court below had been told. In any event, if the Applicant was not a member of a syndicate, he then was master of his own organisation and certainly this point carries the matter no further as mitigation.

10. In his second point, the Applicant stated that he was not a professional criminal. We have to say that so far as Hong Kong is concerned, there seems no other sensible way of describing him.

11. Thirdly, he stated that, because perhaps of communication problems, his lawyer had not clearly explained his background, motives and other matters in court. This point seems to us to be nonsensical. Counsel had placed such mitigation as there was before the judge. The fact that it seems to have provided little result for the Applicant is a reflection only of its worthlessness.

12. The Applicant's last point was that his lawyer at court referred an authority to the court which was "inappropriate". Again, this point is valueless. Counsel had referred the judge to Chan Sui-to which is a guideline case for offences such as those facing the Applicant.

13. In the present case, whilst the losses may not have been very large, the potential for loss was large and it is apparent that the judge did not lose sight of this important factor.

14. The application is without merit and it is dismissed.

15. We shall, in view of the complete lack of any substance to the application, order that 3 months of the time the Applicant has spent in custody shall not count towards his sentence.

Representation:

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

Applicant in person