HKSAR v. Gui Zhiqiang

CACC 289/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 289 OF 2005

(ON APPEAL FROM DCCC NO. 428 of 2005)

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BETWEEN

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Before:   Hon Stuart-Moore VP and McMahon J

Date of Hearing: 6 December 2005

Date of Judgment: 6 December 2005

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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 13 June 2005, the applicant pleaded guilty in the District Court before Judge Whaley to four charges.  The first two were each related to the use of a false Visa card on 1 February 2005.  These were different credit cards each bearing the name Tam Kwok-ping.  Charges 3 and 4, respectively, alleged the possession on the same day of two more false credit cards and the possession of a forged identity card, all of these items also bearing the name Tam Kwok-ping.  The applicant, aged 48, was sentenced on 17 June 2005 to concurrent terms of 30 months on charges 1 to 3 and to 8 months’ imprisonment on charge 4, of which 4 months was ordered to run consecutively, making 2 years and 10 months in all.  He now seeks leave to appeal against sentence.

2.The facts were straightforward.  The 1^st charge concerned the successful purchase, using a forged Visa card, of 2 bottles of wine with a total value of $7,456.  The applicant had initially entered the shop in the company of a woman.  A few minutes later, the applicant returned to the shop on his own wanting to purchase a further bottle of wine.  The value of the wine on this occasion was $6,100 and the salesman’s suspicions were aroused.  The applicant produced a different Visa card in payment but, when the card centre was telephoned by a member of staff, the applicant became nervous and offered to pay in cash.  He then tried, unsuccessfully, to snatch the credit card.  He made a hurried escape but was caught shortly afterwards by a police officer.  The applicant gave an account of having picked up the two credit cards and going into the shop to purchase wine in order to see if they worked.  When his wallet was searched, two more credit cards and an identity card were found on him.  All of these items were forgeries.  The identity card had been lost by its true owner, Tam Kwok-ping, several years earlier and the date of birth and photograph which appeared on the card at the time of the applicant’s arrest were both false.

3.When sentencing, the judge remarked that the applicant was a Mainland resident who had, since June 2004, frequently gone in and out of Hong Kong on a two-way permit as revealed by official immigration records.  As trial counsel had helpfully provided the judge with several sentencing decisions in similar cases, the judge was able to take these into account.  He accepted that the applicant had been acting alone and that there was no evidence of a syndicate being behind the commission of these offences.  The judge then adopted a starting point of 3 years and 9 months on charges 1, 2 and 3, reducing this to 30 months to reflect the plea of guilty which had been entered to each charge and ordering that these sentences should be served concurrently.  On the 4^th charge, the judge took a 12-month starting point and, having reduced this to 8 months to reflect the plea, he ordered that 4 months of the sentence should run consecutively to the sentences on the other charges.  When giving the reason for the length of these sentences, the judge said:

“… using false credit cards is a prevalent offence, in my view, and one that is calculated to undermine the whole elaborate system of credit which is such an essential feature of modern commercial life, and the sentences passed by the courts must incorporate an element of deterrence in an attempt to deter people like the defendant from using credit cards which do not belong to them in what might appear to be an easy way to make money.” (Appeal bundle p. 12)

4.Ms Monica Chow, on the applicant’s behalf, submitted that the 30-month totality of the sentence on the 3 charges relating to the forged credit cards seemed to be out of line when compared to a number of other cases of the same or a similar kind.  Amongst the previous decisions of this court included in Ms Chow’s list of authorities was R v Chan Sui-to and Anor [1996] 2 HKCLR 128, where she made the point that the applicant’s role in the present case appeared to be no greater than D2’s role in Chan Sui-to’s case.  D2 in that case had gone on a day’s shopping spree using forged credit cards on 5 occasions to obtain articles valued altogether at about $16,000 (charges 11 to 15).  Charges 16 & 17 were related to the use of a forged Hong Kong identity card and charge 18 was in respect of the possession of a second forged credit card found in her possession at the time of her arrest.  The judge found D2 to be “merely a courier of counterfeit credit cards” who had been influenced by Chan Sui-to (D1) to make numerous dishonest purchases with a false credit card.  She was, however, aware that D1 was running a “factory” where false credit cards were being made.  The sentencing judge had taken a starting point of 5 years for D2 whereas Yang CJ, giving the judgment of this court, stated that 3 years before plea for the credit card offences would have been appropriate and that concurrent sentences of 4 months should be imposed after plea for the identity card offence.

5.Chan Sui-to provides some guidance for the assistance of sentences in cases concerning the use of forged credit cards.  However, in HKSAR v Chan Wai-kin, CACC 237/2005, we observed as follows:

“7. “In the guidelines given by the court in Chan Sui-to & Anor, it was held that a person who played “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 5 to 6 years after trial”.  Somewhat curiously, the court in that case, having gone on to say that the sum of money involved is only one of the factors to be taken into account and “is not even the most significant factor”, and having concluded that the 1^st appellant was operating a medium-sized operation, went on to state:

“Applying our guideline, we think that the totality of the sentences on D1 should be 4 years before plea”.

This starting point, at a time when the policy of giving a one-third discount had not yet been fully implemented, was reduced to 3 years’ imprisonment to reflect the guilty pleas.

8. As Mr Hemmings (who represented the 1^st appellant in Chan Sui-to & Anor) readily accepted in the course of his most able submissions, no reason emerges from the judgment in that case for the failure of the court to follow its own guideline tariff of “between 5 and 6 years” (before giving credit for a plea of guilty) for a medium-sized operation.  Although Yang CJ stated that the guidelines he had just announced “may be adjusted upwards or downwards according to circumstances”, we have not been able to understand either the contradiction which is apparent from the court adopting a 4-year starting point or the court’s reason for imposing such a modest sentence for offences of considerable gravity.

9. However, the principles which were not intended to be exhaustive and the guidelines applicable to sentencing in cases where there has been fraudulent use of credit cards (as opposed to the actual outcome of the appeal in Chan Sui-to & Anor) continue to provide valuable assistance.”

6.The same passage from Chan Wai-kin’s case was also cited in HKSAR v Ho Ka-yee (D2), CACC 245/2005 where a 2½-year sentence after trial was upheld for the single use of a forged Visa card where the applicant attempted to obtain a bag valued at $5,500.  In that case, a male accomplice received a 2-year sentence, having received a full one-third discount for pleading guilty.  A starting point of 3 years’ imprisonment for the accomplice reflected the fact that he had previously been convicted of similar offences and faced two other charges related to the use of another false credit card for which he received concurrent sentences.

7.Returning to Chan Sui-to’s case itself, Ms Polly Wan, for the respondent, submitted in her written reply that the applicant in the present case was self-evidently in a different position to D2 in that case.  The applicant is a mature man who was accustomed to making visits to Hong Kong, and there was no suggestion that he had acted under the influence or control of any third party.  Ms Wan also relied upon this court’s judgment in HKSAR v Yau Wai-chun, CACC 417/2000 where (at page 5), having made reference to the importance of the “potential losses” in false credit card cases (as decided in HKSAR v Ng Swee Thiam & Ors [2000] 1 HKLRD 772 at 778), it was stated that:

“…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).”

8.We are rarely assisted by comparing the facts under review in an application before this court with large numbers of other cases of a similar kind.  However, it is perhaps worth mentioning that in the present case Ms Chow placed before us, amongst others, the decision in HKSAR v Poon Cho-shu, CACC 55/2000, where the applicant had been involved in using and attempting to use 3 false credit cards on a total of 4 occasions and the goods or services obtained had amounted to under $11,000.  On arrest, the applicant was found in possession of a fourth forged credit card and an identity card which was not his own.  All the false credit cards and the identity card bore the same name.  In that case, the judge had ordered that there should be concurrent terms of 3 years’ imprisonment after plea for each of the false credit card offences and that there should be a consecutive sentence of 8 months after plea for the identity card offence.  This court reduced the sentences on the credit card offences to 2 years’ imprisonment but did not interfere with the consecutive sentence of 8 months for the identity card offence.  In the result the applicant in that case received a total sentence of 2 years and 8 months.

9.In the present case, on similar facts the sentence was 2 years and 10 months in total.  Poon Cho-shu’s case, it is true, left the appellant with a slightly lower sentence but we do not consider, on this account, that the sentence passed on the applicant in this case can be described as manifestly excessive.  The judge had plainly taken into account all the factors of any importance both on the present facts and from those emerging in earlier decisions of the courts.

10.Ms Chow, in a further submission, suggested that if the starting point on the credit card offences was not held to have been set too high, the whole of the 8-month sentence on the identity card offence ought to have been ordered to run concurrently with the other sentences of 30 months.  We are disinclined to accept this contention as the possession of a forged identity card, for someone in the applicant’s position as a visitor to Hong Kong, can only be regarded as an aggravating factor giving an additional dimension to the criminality revealed by his conduct.

11.Accordingly, for the reasons we have given, this application is dismissed.

Ms Polly Wan, SGC, of the Department of Justice, for the Respondent.

Ms Monica Chow, instructed by Messrs Bobby Tse & Co., assigned by Department of Legal Aid, for the Applicant.