香港特別行政區 訴 馬滿珍及另一人

Read the full judgment text of CACC 426/2005 on BabelCite. This Court of Appeal judgment was delivered on 28 April 2006 before 張澤祐, 楊振權.

Criminal law – credit card fraud – possession of false instruments – using false instruments – obtaining property by deception – sentencing – application for leave to appeal sentence – two-way permit entrants using Hong Kong as base for fake credit card offences – joint enterprise – aggravating factors – uplift of starting point – discount for guilty plea – Criminal law – credit card fraud – sentencing starting points – medium-scale offences – guidelines for use of false credit cards. Facts: Ma Man Zhen entered Hong Kong on a two-way permit on 4 March 2005, obtained 9 fake credit cards in Shenzhen, and the following day attempted to use a forged AIG credit card to purchase skincare products at Jusco department store in East Point City before fleeing when staff grew suspicious. Police found 8 skincare products and 4 fake credit cards in her paper bag and another fake AIG card in her wallet; the 8 products had been purchased from Angel Cosmetics in Kwun Tong using fake credit cards. Ma had been promised 10% commission on successful purchases. Police also found 4 fake credit cards in a red envelope inside Liu Xue Tao's handbag, two in the name of Chen Lai Ying and two in the name of Chan Min Yee. Ma pleaded guilty to all four charges (obtaining property by deception, using a false instrument, and two counts of possession of a false instrument) and was sentenced to 38 months' imprisonment on each charge, concurrent. Liu pleaded not guilty to one count of possession of false credit cards, was convicted after trial, and was sentenced to 4 years' imprisonment. Both applied for leave to appeal sentence. Issues and holdings: (1) Whether the trial judge erred in treating the applicants' purpose of entering Hong Kong to commit credit card fraud as an aggravating factor to uplift the sentencing starting point – No; the Court of Appeal upheld the analogy with pickpocket cases in HKSAR v Ngo Van Hay [2006] 2 HKLRD, holding that exploiting Hong Kong's status as an international metropolis and widespread use of credit cards is no different in principle from exploiting its densely populated environment. (2) Whether Ma's 38-month sentence (a 57-month starting point reduced by one-third for guilty plea) was manifestly excessive – No; the 57-month starting point was correct and the 38-month sentence was not excessive, with no further room for reduction. (3) Whether Liu's 4-year sentence was manifestly excessive – Yes, in part; while the 3-year basic starting point for possession of 4 false credit cards was correct, a full one-third uplift to 4 years was unduly harsh for a single charge. Outcome: Ma's application for leave to appeal sentence refused; Liu's application granted and treated as the substantive appeal, appeal allowed, and sentence reduced from 4 years to 3 years 6 months (representing a 6-month uplift on the 3-year starting point).

Legal issues: Uplift of starting sentence for using Hong Kong as a base for credit card fraud · Propriety of Ma's 38-month sentence after one-third discount · Excessiveness of Liu's 4-year sentence

Outcome: Ma's application for leave to appeal sentence refused. Liu's application for leave to appeal sentence granted, treated as the substantive appeal, and allowed; Liu's sentence reduced from 4 years to 3 years 6 months.

Cited by 10 cases · Cites 2 cases