HKSAR v. Leung Chun Pong

CACC140/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.140 OF 2006

(ON APPEAL FROM DCCC 721 AND DCCC 724 OF 2005)

----------------------------

BETWEEN

----------------------

Before : Hon Stuart-Moore VP and Lunn J in Court

Date of Hearing : 13 July 2006

Date of Judgment : 13 July 2006

-----------------------

J U D G M E N T

-----------------------

Lunn J (giving the judgment of the Court) :

1.The applicant, who appears in person, applies for leave to appeal against sentence.  Having pleaded guilty to four charges on arraignment on 13 February 2006 before Deputy Judge Casewell in the District Court the applicant was sentenced on 29 March 2006 to a total of three years' imprisonment.

The charges

2.All the charges arose out of the use of forged credit cards.  Charges 1 and 4 alleged conspiracies to defraud, contrary to common law, respectively on or about 5 and 14 June 2004.  Each charge averred the false representation having been made that credit cards were genuine and the person that signing them, that is, the imprints were authorised so to do.  Charges 2 and 3 alleged offences of obtaining property by deception and attempting so to do respectively on 10 June 2004, contrary to section 17(1) of the Theft Ordinance, Cap.210.  On each occasion the property in question was three mobile telephones.

Sentence

3.The applicant was sentenced to 16 months' imprisonment on Charge 1, 12 months' imprisonment on each of Charges 2 and 3 and 16 months' imprisonment on Charge 4.  The sentences imposed in respect of Charges 2 and 3 were ordered to be served concurrently but consecutively to Charge 1.  Eight months of the sentence imposed in respect of Charge 4 was ordered to be served consecutively to the sentences imposed in respect of Charges 1,2 and 3.  Accordingly, the total sentence of imprisonment imposed on the applicant was three years.

The prosecution case

4.The prosecution case arose from the infiltration of an undercover police officer into a group involved in the use of forged credit cards to obtain property, an activity described as "Che Sau".  In the course of seeking employment as a person used to purchase goods in this activity, the officer was introduced to the applicant who, having learnt that the undercover officer was inexperience in this activity, undertook to teach him to use such credit cards to obtain property.

1^st charge

5.On 5 June 2004 the applicant accompanied the undercover police officer in a van to various destinations in his search for an appropriate place at which to use the credit cards.  He gave the officer two credit cards, which he used on the instructions of the applicant to obtain a digital camera and a Playstation 2 game from a shopkeeper.  On the instructions of another of the conspirators the applicant purchased a cat using one of the credit cards.

2^nd and 3^rd charges

6.On 10 June 2004 the applicant used a forged credit card to obtain three mobile telephones from Wilson Communications Ltd and, at another branch of the same company together with a co-accused, attempted to obtain other mobile telephones.

4^th charge

7.On 14 June 2005 the applicant provided to the undercover police office two forged credit cards with which, on the instructions of the applicant, the officer used to obtain a mobile telephone. 

Total value

8.The aggregate value of the property obtained in the four charges was $31,343.

Reasons for sentence

9.Of the activities in which the applicant and his co-accused had been concerned, the judge stated at paragraph 9 of his Reasons that he found :

"…. It was clearly part of a commercial operation by them."

10.Of the seriousness of the offences, he went on to say at paragraph 19 :

"…. the courts have taken the view that involvement in the offences involving counterfeit credit cards is a serious matter, and there have been directions on sentence from the Court of Appeal.  I refer to the case which is Chan Sui To [1996] 115 Crim App which is a case commonly referred to in these kind of offences, and it says that:

'The accused has played an active but not necessarily key role in a medium-sized operation with no elaborate planning and equipment, without an international dimension.  He should receive a sentence of 5 to 6 years after trial.'

20. I have already observed that what was going on in this case does not amount to a medium-sized operation.  The amounts of money was smaller than $50,000 which seems to be the bottom entry point for a medium-sized operation.  Now, there is not much evidence of elaborate planning here.  They just collected the cards and used them, and there was no international dimension.

21. So insofar as that is concerned, the starting point for sentence is not one that I need necessarily adopt in this case.  There is no clear tariff for this particular activity that these defendants were involved in except that the courts must reflect these are serious offences."

11.Having noted that the applicant was clearly remorseful for his conduct and that he had admitted his guilt, the judge made reference to various positive aspects of the background report obtained in respect of the applicant.  At paragraph 12 he said :

"…. The probation officer forms the view that he has learnt a lesson.  He is making an effort for positive change and it is thought that he can build up a better life for himself and avoid trouble with the law in the future.  And it is clear that I should bear in mind this positive change in the defendant's behaviour when assessing the level of sentence."

Grounds of appeal against sentence

12.Attached to his notice of application for leave to appeal against sentence are the following grounds of appeal :

"1. The authorities cited by the judge at the time of giving the decision were totally irrelevant to this case.

2. The judge had held an unfair view towards me.  Reason as follows: between the 3^rd and 4^th hearing of the trial, the judge mentioned that I once received 'rehabilitation' and therefore my testimony was not credible.

3. The amount involved in this case was at the low end.  But for the authorities cited by the judge, the amount involved was at the middle of the scale and it was related to organized crime.  The judge once said the crime I committed was not an organized one.

4. I pleaded guilty to all charges before the trial commenced and did not waste the court's time."

13.As is readily apparent, there is no merit whatsoever in any of the grounds of appeal sought to be relied upon by the applicant.

Grounds 1 and 3

14.It is apparent from the passages quoted earlier that the judge made it perfectly plain for the reasons there articulated, that, whilst he was aware of the guidance of this court set out in the judgment in Chan Sui To, he did not feel it necessary nor did he follow that guidance in respect of the sentence imposed on the applicant.

Ground 4

15.In imposing the sentences imposed on the applicant in respect of each of the four charges, the judge stipulated a starting point, from which he discounted sentence by one-third, stating specifically in respect of each charge that he did so on the basis of the applicant's plea of guilty to each respective charge.

Ground 2

16.This appears to be meaningless, given that the applicant had pleaded guilty.

Conclusion

17.Accordingly, the application for leave to appeal against sentence is dismissed.

Ms Evena Chan, SADPP of Department of Justice, for HKSAR

Applicant in person, present