HKSAR v. Zhou Jianguo and Another

CACC 480/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 480 OF 2005

(ON APPEAL FROM DCCC NO. 940 of 2005)

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BETWEEN

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Before:   Hon Stuart-Moore VP and Stock JA

Date of Hearing: 23 June 2006

Date of Judgment: 29 June 2006

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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):

Background

1.On 4 November 2005, the applicants (D1 and D2 respectively) pleaded guilty in the District Court before Judge Chua to a number of charges related to the use of false credit cards.  The judge imposed on them sentences totalling 3 years and 5 years’ imprisonment, respectively, against which they now seek leave to appeal.

2.D1 admitted four offences, all of which were committed on 9 July 2005.  D2 pleaded guilty to seven offences.  These were committed on three separate days including 9 July 2005 when he was arrested in D1’s company.

3.In short, the facts disclose that on 23 June 2005, while D2 was with an unidentified man, he used a false credit card to purchase a Rolex watch, priced at $45,320, from a jewellery shop in Central (charge 1).  D2 had arrived in Hong Kong on a two-way permit of seven days on that same day.

4.On 8 July 2005, D2 again travelled to Hong Kong on a seven-day permit.  He was in the company of a man whose identity is unknown when, later that day, he used a false credit card, different to the one he had previously used, to buy two video cameras valued at $21,970 (charge 2).  On this occasion, he was required to verify his identification.  He succeeded in doing this by producing a false passport which bore a Japanese name matching the one on the credit card.  Both of these counterfeit items were found in D2’s possession when he was arrested on the following day.

5.At about 3.00 pm on 9 July 2005, D2 was with D1 in Causeway Bay when both of them purchased a language-learning pack, each priced at $18,326.  The two false credit cards produced on this occasion (charges 3 and 4) had not previously been used by D2 in his earlier purchases.

6.Then, at about 3.30 pm, while in the company of another man, D2 purchased a mobile telephone priced at $7,388 (charge 5) with one of the false credit cards he had used earlier in the day.  Half an hour later, D1 and D2 were inside another shop attempting to purchase a further mobile telephone priced at $7,388.  Again, one of the credit cards which had been used to purchase a language-learning pack earlier was tendered in payment by D1 (charge 7).  When the shopkeeper suspected that this was false, D2 immediately produced another credit card which had not until that moment been used in this series of offences (charge 8).  Again, the shopkeeper was suspicious of the card and the police were called.  On their arrival, the applicants were searched.  In D1’s possession, the police found one false credit card and two false passports (charges 9 and 11).  Five false credit cards and two false passports were found in D2’s possession (charges 10 and 12).

7.D1, aged 39, pleaded guilty to charge 3 (obtaining property by deception), charge 7 (using a false instrument), charge 9 (possession of false travel documents) and charge 11 (possessing a false instrument).  In effect, D1 had used the same false credit card on two occasions, and he had another false credit card and two false passports in his possession when he was arrested.  The criminality proved against him was confined to a single day.  He had arrived the day before on a 7-day permit from the Mainland.

8.D2, aged 38, pleaded guilty to charges 1, 2, 4 and 5  (obtaining property by deception), charge 8 (using a false instrument), charge 10 (possession of false travel documents) and charge 12 (possessing false instruments).  In D2’s case, he had made use of four different false credit cards on a total of five occasions spread over two trips to Hong Kong occupying nine days until his arrest.  The five credit cards in his possession at the time of his arrest included three which he had not previously utilised.  Like D1, he was carrying two false Japanese passports.

9.Charge 8 against D1 and charges 6 and 7 against D2 were left on the file.

Grounds of appeal

10.D1 was not represented and we shall take his application last.

D2’s application

11.Two substantive grounds of appeal were raised by Mr Mughal on behalf of D2 whose sentence, he argued, was manifestly excessive.  Firstly, Mr Mughal submitted that the starting point of 6 years’ imprisonment which the judge had taken on charges 1, 2, 4, 5, 8 and 12 was too high in that it was disproportionate to D2’s criminality.  Secondly, he suggested that the judge had not sufficiently taken various mitigating factors into account when arriving at an overall sentence of 5 years’ imprisonment for all the offences.

12.The judge, in sentencing D2, had reduced by a third the 6-year starting point taken for the six ‘credit card’ offences admitted by D2 in order to reflect his pleas of guilty.  The resulting 4-year sentences were all ordered to run concurrently.  On charge 10, relating to D2’s possession of two false Japanese passports, the judge imposed an 18-month sentence, making 12 months of this term consecutive to the 4-year sentence on the other charges.

13.The judge made reference to R v Chan Sui-to and Anor [1996] 2 HKCLR 128 and Attorney General v Chan Yet-wai and Ors CAAR 14/1993 (unreported) to justify the starting points she had adopted in relation to the false credit card offences.  In the former case, this court indicated (at page 134) that:

“… an accused who plays 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. Sentences may be adjusted upwards or downwards according to circumstances.  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.”

14.D2, in the present case, had admitted offences where the value of the goods obtained by him was just over $93,000 and his attempt to obtain a further item valued at $7,388 had led to his eventual arrest.  D2 was not acting alone in the commission of the offences and none of the property he obtained was recovered including, perhaps significantly, the mobile telephone (in charge 5) which he had obtained only about half an hour before his arrest.  As we have said, D2 had been directly concerned in the use of four false credit cards and the five cards found on him included three which had not previously been used.

15.On the day of his arrest, D2 had visited three different shops within an hour and, as Mr David Leung for the respondent pointed out, with the number of false credit cards in D2’s possession, it would be bordering on the absurd to think that, but for his arrest, the shopping spree would not have continued.  The potential for additional loss was considerable.  Mr Leung also contended that as most of the credit cards in D2’s possession were in one or other of the two names appearing in the false Japanese passports he was carrying, this was indicative of a well planned enterprise.  Furthermore, he submitted, there was an international element to the extent that D2 had travelled to Hong Kong posing as a legitimate visitor on a two-way permit when, in reality, his cross-border expeditions were for entirely fraudulent purposes.

16.In regard to the grounds of appeal, it is quite apparent to us that the judge gave credit for the pleas of guilty and that, realistically, there was little else beyond this factor which could be said in mitigation.  Mr Mughal referred to D2’s clear record in Hong Kong but, bearing in mind that D2 is from the Mainland, this was not a consideration of any weight.

17.Where, however, we are unable to agree with the approach taken by the judge is in relation to the 6-year starting points taken for the individual offences of obtaining property by deception (charges 1, 2, 4 and 5), using a false instrument (charge 8) and possessing false instruments (charge 12).  Taken individually, none of these offences, in our opinion, deserved a sentence of that length after trial (or 4 years’ imprisonment after a guilty plea) and, to this extent, we propose to approach sentencing afresh.  We shall deal separately with the sentence imposed on charge 10 relating to the passports.

18.As this court has said on a number of occasions, the proper approach to be taken by a sentencing judge dealing with a number of offences is to decide, first and foremost, on a proper starting point for each offence.  For this purpose, it is not appropriate to take a global view.  The sentence for each offence needs to be looked at separately.  After this has been done, the sentence must, in appropriate circumstances, be reduced to take into account the mitigation.  The final step is to deal with totality.

19.Approaching the matter in this way, we consider that on charges 1, 2, 4, 5, 8 and 12 an appropriate sentence to have been 3 years’ imprisonment for each offence.  Reducing this starting point to take into account the pleas of guilty, the sentence on each charge becomes 2 years’ imprisonment.

20.We turn next to a consideration of the 18-month sentence on charge 10 in respect of which the judge had said:

“6. Even though you intended your passport to be for identity purpose only, nevertheless, just mere possession of forged passports carries a sentence of 15 to 18 months after plea (…… R v Wang Ju-wen [1989] 2 HKLR 26).  You had two passports.  So I sentence you on Charge 10 to 18 months.  Applying the global principle, 6 months of the sentence will run concurrent with the previous sentence, making a total of 5 years that you have to serve.”

The judge had referred to two cases in support of the starting point she selected on this charge.  However, the first of these appears to have been wrongly referenced as no trace of it can be found.

21.In The Queen v Wang Ju-wen [1989] 2  HKLR 26 which was the other case to which the judge referred, this court was concerned with the appropriate level of sentencing where false or unlawfully obtained travel documents were involved.  In that case, there were two false passports, one of which had been used on sixteen occasions either to enter or to leave Hong Kong.  The Court of Appeal did not interfere with the concurrent 18-month sentences which the sentencing judge had imposed, following pleas of guilty, for the possession of these passports.  However, whereas the false passports in that case were intended to facilitate travel, it was accepted in the present case that the passports were “for identity purpose only”.  They were, in other words, to be used only in the furtherance of the credit card frauds and were not intended for travel.

22.Mr Mughal referred us to HKSAR v Bin Kei-chi and Anor, CACC 181/2005 (unreported), decided on 23 September 2005, a starting point of 6 years’ imprisonment had been taken where twenty-five false credit cards were discovered in a passenger’s luggage at the airport as he was about to leave Hong Kong for Korea.  All the credit cards were in the same name and this matched the name in a false passport which was also found in the suitcase.  It was accepted that the passport was not intended to be used for travel.  In dealing with totality, the sentencing judge had taken a 12-month starting point and made only 4 months of the sentence consecutive to the sentence of 3 years and 8 months for the possession of the false credit cards.  This court (at paragraph 12) said that in such a case the possession of the false passport was an additional dimension in such a case and the judgment continues:

“… Plainly, however, the principal intention was to use the forged passport to provide support for D1’s identity should he be challenged when presenting a false credit card bearing the same name.  As such, the judge was entitled to look at the overall criminality revealed by both charges and impose, as he did, a sentence which reflected this.”

23.There are two passports in the present case and a starting point of 18 months on the facts we have been given was appropriate.  However, the judge imposed 18 months’ imprisonment on this charge after plea, so that the notional starting point must have been 27 months or thereabouts.  In a case where the passports were never intended to be used for travel purposes, we consider this was manifestly excessive.  On this charge, the starting point we have chosen must then be reduced to 12 months to reflect the guilty plea.

24.We next have to consider totality in the context of the sentences on all the charges.  The 1^st charge related to D2’s visit to Hong Kong in June 2005 for which, as we have already indicated, we shall substitute a sentence of 2 years’ imprisonment and quash the 4-year sentence imposed by the judge.  The same will apply in relation to D2’s July visit giving rise to charges 2, 4, 5, 8 and 12.  Again there will be individual 2-year sentences on these charges.  These will be concurrent to each other but consecutive, to the extent of 18 months, to the 1^st charge.  On charge 10, the sentence of 12 months will run consecutively to the other sentences to the extent of 6 months only.  This brings the totality to 4 years’ imprisonment.

25.Accordingly, we shall grant leave to D2.  Treating the hearing as the appeal, we allow the appeal to the extent that the sentences imposed in the court below will be reduced in the manner we have indicated.  In overall terms, D2’s sentence of 5 years is reduced by a year to 4 years’ imprisonment.

D1’s application

26.D1, in homemade grounds of appeal, suggested that the judge demonstrated a degree of bias against him by frequently interrupting his counsel during the speech in mitigation.  He stated also that he had been left with the impression that in other similar cases, lighter sentences had been imposed.  In earlier written grounds, D1 set out the sad details of his domestic circumstances which he indicated had led him into committing these crimes.

27.Whilst we can express our sympathy about D1’s family circumstances, assuming that what he has told us is true, these can in no sense excuse his criminal conduct or mitigate the position in which he finds himself.  Indeed, we note in his case that he has twice before appeared in the Hong Kong courts, albeit the convictions which resulted from these appearances were almost ten years ago for which reason they were rightly ignored by the judge.

28.Turning to D1’s perception that the judge was biased against him as a result of the interruptions of his counsel as he tried to mitigate, we have some sympathy for the applicant’s view.  This was not a case where, realistically, D1’s mitigation extended beyond his pleas of guilty.  Nevertheless, counsel had a duty to put such mitigation as he felt appropriate before the court and this difficult task was made no easier by the judge’s constant interruptions, none of which favoured D1.  In the end, however, D1’s mitigation was placed before the court and it seems that no harm was done.  In this regard, we should merely indicate that just as it is counsel’s duty to mitigate, it is incumbent on the judge to take heed of the mitigation even if, in the end, it amounts to very little.  If there are comments to be made to enable counsel to make a reply to them, or there are points requiring further clarification, these are usually best left until counsel has finished the particular topic in his mitigation which calls for the comment.  If a short speech in mitigation can, as in this case, be anticipated, it is a better practice to leave all comments until counsel has concluded his remarks.

29.Lastly, in regard to D1’s complaints, while there may have been lighter sentences imposed for similar cases as he seems to believe, each case will necessarily depend on its own facts.  On the facts of this case, D1’s concurrent sentences of 2 years’ imprisonment on charges 3, 7 and 11 were appropriate.  However, for the same reasons we have given in D2’s case, we consider that for the possession of false passports in charge 9, an 18-month starting point would have been proper.  To this extent, the judge’s sentence after plea was in our opinion, manifestly excessive.  The sentence on the 9^th charge is reduced to 12 months’ imprisonment to take into account D1’s plea of which 6 months will run consecutively to his 2-year sentence on the other charges.

30.Accordingly, D1’s application is allowed.  We shall grant leave and treating the hearing as the appeal, we allow the appeal and reduce his sentence in the way we have indicated.  This will result in a 6-month reduction of his total sentence.  In overall terms, he now has to serve 2½ years’ imprisonment.

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

The 1^st Applicant (D1), in person.

Mr Hanif Mohamed Mughal, instructed by Director of Legal Aid, for the 2^nd Applicant (D2).