HKSAR v. Shum Chung Wai

CACC000516/2001

CACC 516/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 516 OF 2001

(ON APPEAL FROM DCCC 175 OF 2001)

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Coram: Hon Stuart-Moore VP, Stock JA, and Lugar-Mawson J

Date of Hearing: 23 April 2002

Date of Decision: 23 April 2002

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J U D G M E N T

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Lugar-Mawson J: (giving the judgment of the Court)

Background

1.On 8 June 2001, the Appellant, Shum Chung Wai a man of 21, appeared in the District Court before Z E Li J on seventeen charges of theft, contrary to s.9 of the Theft Ordinance; two charges of possession of an identity card relating to another person, contrary to s.7A(1A) of the Registration of Persons Ordinance; four charges of forgery, contrary to s.71 of the Crimes Ordinance and two charges of possession of equipment for making a false instrument, contrary to s.76(1) of the Crimes Ordinance. He pleaded guilty and was convicted of all twenty-five charges. Background and psychological reports were called for and on 23 July 2001 he was sentenced to a total of 4 years imprisonment. He now appeals against his sentences, leave having been granted by Woo J A on 5 February 2002. He represents himself in court today.

Facts

2.On 27 December 2000, the Appellant was seen by a party of plain clothes Police Officers to be acting suspiciously in the lobby of a building in North Point. He was seen to remove three letters from the letterboxes in the lobby (this gave rise to charge 1). He was apprehended and searched. He was found to be in possession of another person's identity card (this gave rise to charge 2), together with a large bunch of keys, one of which opened one of the mailboxes in the lobby.

3.The Appellant then led the officers to search his home in Quarry Bay. In his bedroom were found, eight stolen credit cards (this gave rise to charges 3 to 10); four false credit cards (false instruments) which had been electronically altered to contain false information on their magnetic strips (this gave rise to charges 11 to 14); one credit card with a blank (unrecorded) magnetic strip (this gave rise to charge 15); a computer and other electronic equipment capable of altering information on credit cards (this gave rise to charge 16); three further stolen items of mail (this gave rise to charges 17 to 19); and another identity card relating to another person (this gave rise to charge 20). Also found were notebooks containing a large number of dates, names of people and numbers that appeared to be credit card numbers.

4.Following the search at Quarry Bay, the Appellant led the police to a room in Tin Hau Temple Road, which he said he had rented for a few days in October 2000. There he pointed out a hidden compartment in the ceiling, in it the Police found five more stolen credit cards (this gave rise to charges 21 to 25).

5.Later, the Appellant made inculpatory admissions in a video recorded interview. In them he spoke of how he had stolen credit cards from letterboxes and under the tuition of another had learned how to alter the data on their magnetic strips.

6.The stolen credit cards were from a variety of credit card companies. The forged ones all purported to be VISA cards, but issued by various banks.

The sentencing

7.The psychologist's report revealed that the Appellant is intellectually normal, however he lacks proper social skills and failed to appreciate the seriousness of his offences. The probation report revealed a history of social difficulties in his early teens, when he mixed with 'bad elements', and experimented with drugs. It shows a decline into a wasteful lifestyle, overseen by an indulgent divorced father. The appellant claims to have suffered trauma when his parents' divorced. He left school in November 1997, with no qualifications, since then he has never held a job and has been reliant on his father for his support.

8.The Appellant has two previous convictions; one is for a similar offence. Briefly, the facts of that offence are that on 11 October 2000 he attempted to buy a notebook computer, worth $29,120, with a forged American Express card. As he was unable to produce his identity card, he was asked to return later in the day. In the meantime the salesman had checked with American Express and found that the card was a forgery. When the appellant returned he was arrested. On 24 May 2001 at North Kowloon Magistrates Court he was sentenced to 8 months' imprisonment for this offence. On 28 November 1995 in the District Court he was placed on probation for 18 months for an offence of wounding with intent to do grievous bodily harm committed when he was a teenager.

9.The judge took a starting point of 6 years in respect of each of the forgery charges (charges 11-14) and the two possession of equipment for making a false instrument charges, (charges 15 & 16) and reduced it to 4 years to be served concurrently for the pleas of guilty. He considered that he was unable to give any further reduction in the light of the Appellant's criminal record. The Judge did not differentiate between the charges relating to the theft of mail (charges 1& 17-19), the theft of other credit cards (charges 3-10 & 21-25), and the possession of another's identity card (charges 2 & 20), referring to them all as 'theft'. He took a starting point of 3 years for each and reduced it to 2 years to reflect the guilty pleas, to be served concurrently. Following the totality principle, he ordered all sentences to run concurrently, making a total of 4 years. Quite properly, he ordered the Appellant's sentences to run consecutively to the sentence he was already serving.

The proper level of sentences

10.Essentially in his homemade grounds of appeal the Appellant says that his sentences are manifestly excessive and that the judge gave him an insufficient discount to reflect his guilty pleas and his cooperation with the Police.

11.In R v Chan Sui-to & Anor [1996] HKCLR 128, this Court listed several factors that a sentencer should take into account in offences of credit card fraud, these are:

1. The size of the operation; for example, whether it involved large sums of money, whether it concerned a large number of persons or forged credit cards;

2. The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent;

3. Whether there is an international dimension.

4. Whether the accused played a major role; for example, running a syndicate, engaging in actual manufacture, organizing the use of forged cards; or whether he is a mere 'cog in the wheel' as a courier or a custodian or keeper.

5. Whether there is a plea of guilty.

12.Many of those factors are present in this case; four forged cards were involved; the Appellant's operation was a planned one of some sophistication; he had thirteen stolen cards in his possession; he was actively engaged in the actual manufacture of forged cards and had not only the equipment and technical skills to manufacture them, but also details of other persons' credit card accounts. He was certainly far more than a 'cog in the wheel' of another's enterprise; the enterprise appears to have been entirely his own. Admittedly there was no international dimension to his offences, but there was clearly the potential for that. The judge acknowledged his guilty plea with a one-third discount from the starting-point sentence. He was given a full and adequate discount for his guilty pleas and cooperation with the authorities.

13.As the Appellant faced no charges of using the cards in attempting to obtain property by deception, there are no amounts to guide either the judge or us in determining the proper level of sentence. However, there can be little doubt that the seriousness of the Appellant's offences lies in the potential for losses in the future had they not been discovered. This sentiment was addressed by this Court in HKSAR v NG Swee Thiam & Ors [2000] 1 HKLRD 772 and as recently as 14 March 2002 in HKSAR v HEUNG Ka Wo Johnny Criminal Appeal No. 136 of 2001 (unreported).

14.In Chan Sui-to it was said (at page 134 B-C):

"....the sum of money involved is of course only one of the factors to be taken into account. It is not even the most significant factor."

And in NG Swee Thiam it was said (at page 778 B-C):

"...The question of the amount of losses which may be proved may pale into insignificance when consideration is given to losses in the future...It is this potential for losses which is the most important consideration"

15.Here, the Appellant was in possession of four forged credit cards, which he had forged, as well as thirteen stolen credit cards and one blank card, together with information about other persons' credit cards, which he had obtained from the stolen items of mail. He also had equipment that could tamper with the data on the stolen cards. Provided that he could get his hands on genuine cards to corrupt (an activity he was apparently engaged in when the Police caught him) he could with that equipment forge any number of credit cards. Given all that, the potential for future loss appears to us to have been very great indeed.

16.The need to protect the integrity of the credit card system in a sophisticated economy, such as Hong Kong's, is an extremely relevant factor in this case. Given the prevalence of forged credit cards in our society, computer equipment, such as that involved in this case, is the modern day equivalent of the forger's printing press and the blank card the modern day equivalent of bank note paper and security inks. It must be borne in mind that, unlike a forged banknote, which can only buy goods or services up to its apparent face value, a forged credit card can purchase goods or services up to the victim's credit limit with the issuing bank. Further, a forged credit card can be used to make many purchases. We are of the view that the sentences of 4 years' imprisonment, after plea, for the four offences involving the forgery of the credit cards and the two offences of possession of equipment for making false credit cards are not manifestly excessive.

17.The offences of theft of other peoples' credit cards and mail, and the two identity card offences may be considered to be comparatively less serious than the forgery and possession of equipment offences. Though there can be no doubt that without the cards and the information in the stolen mail the Appellant could not have forged further cards. There is no tariff for theft and 2 years for each of the theft offence is no way manifestly excessive. Had they stood alone, the identity card offences would have attracted sentences in the region of 15-18 months' imprisonment. They, however, do not stand alone, and when the Appellant's overall culpability is taken into consideration those sentences are not manifestly excessive.

Plea for leniency

18.The Appellant pleads for leniency on the ground that his father has liver cancer and that it falls to the Appellant to care for his 16-year old younger brother. It was this aspect of the appeal that led Woo JA to grant leave and call for a medical report. This shows that the Appellant has donated part of his liver to his father. The transplant operation was carried out on 21 January 2002. Obviously, the Judge did not know this matter when he sentenced the Appellant. The medical report shows that the Appellant has made a complete recovery since his operation, it gives no information as to how his father has fared. The Appellant tells us this morning that his father is back in hospital having contracted a viral infection of his liver.

19.This Court has said many times that family circumstances should be disregarded, particularly when sentences for serious offences are concerned. As Cons VP said in R v Shipra [1985] 2 HKLR 493, at page 494:

"...a man must appreciate before he commits a crime, that his family will suffer if he is caught and convicted"

And Silke VP said in R v Chin Hon-yuen Criminal Appeal No. 393 of 1988 (unreported):

"...family circumstances are matters which a wise man would take into consideration before he commits an offence not after."

20.We agree with Mr Madigan, for the Respondent, where in his written skeleton argument he says that it is difficult to see the connection between the operation and the Appellant's sentencing. The Appellant appears to have made a very good recovery from the operation and his health will not be prejudiced by the continuation of his imprisonment. He will be able to care for his younger brother on his release from prison should circumstances render that necessary.

Decision

21.For the reasons we have given, the Appellant's appeal against sentence is dismissed.

Representation:

Mr Paul K Madigan, SGC, Department of Justice, for the HKSAR

The Applicant, Shum Chung Wai, in person.