HKSAR v. Ng Pui Ling, Akina

CACC 519/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 519 OF 2005

(ON APPEAL FROM DCCC NO. 429 of 2005)

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BETWEEN

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Before:   Hon Stuart-Moore VP, McMahon and Lunn JJ

Date of Hearing: 21 December 2006

Date of Judgment: 21 December 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):

1.On 9 December 2005, District Judge M Yuen sentenced the appellant, aged 31, to a total of 4 years and 9 months’ imprisonment in respect of the eight charges on which there had been convictions after trial.  The appellant now appeals against the length of her sentence, having been granted leave on 14 July 2006.

2.Seven of the charges (1 to 4, 6, 8 and 9) were in respect of offences of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap. 210.  The remaining charge (12) was for the offence of possessing an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177.

The facts

3.In brief, the facts disclosed that the appellant, on her arrest on 26 June 2004, was in possession of an identity card bearing the surname ‘Cheung’ which had been reported stolen by its true owner on the day before.  The appellant also had in her possession two counterfeit credit cards which bore the same name as that shown on the stolen identity card.

4.Prior to her arrest on 26 June 2004, the appellant, sometimes on her own (charges 1, 6, 8 and 9) and three times in a joint enterprise with (D3) Chan Kwok-ming (charges 2, 3 and 4), had gone on a shopping spree either using the two counterfeit cards in her possession or lending assistance to D3’s use of a third counterfeit credit card bearing the surname ‘Chan’.  The total value of the goods obtained on this expedition was $21,830.

Sentencing

5.In passing sentence, the judge made reference to the guidance, so far as the credit card offences were concerned, to be found in R v Chan Sui-to and Anor [1996] 2 HKCLR 128.  Further reference was made to HKSAR v Cheung Ka-wo Johnny [2002] 2 HKC 517 and we shall in due course return to both these cases.  The judge did not refer to any previous sentencing decisions of the courts in relation to the identity card offence in the 12^th charge.  Having observed that the appellant had a minor theft conviction in 1994, the judge then took a starting point of 3 years’ imprisonment for each of the deception charges “as well as [for] the possession of identity card charge”.  The judge ordered that 3 months of each sentence on charges 2 to 4, 6, 8, 9 and 12 should be served consecutively.  This additional term of 21 months brought the total to 4 years and 9 months’ imprisonment.

The application

(1)     The identity card offence

6.Turning immediately to the identity card offence in charge 12, Mr Eddie Sean for the respondent responsibly accepted, both at the leave application and in these proceedings, that a 3-year starting point was manifestly excessive.  There are no precise guidelines to be adopted, in circumstances such as these, where an identity card is used in conjunction with credit cards in the furtherance of fraud.  It seems to us, however, in the light of other decisions to which we have been directed, that normally the courts will have in mind a starting point after trial in the region of between 12 to 18 months’ imprisonment.  An illustration of this is to be found, by way of example, in HKSAR v Yim Wai-ling, William CACC 35/2004.  In the judgment, this court conducted a helpful analysis of earlier cases involving the possession of another person’s identity card in the context of offenders who have been engaged in credit card frauds, concluding that a part of the sentence for the identity card offence should be made consecutive as that offence had “increased [the offender’s] criminality”.  Similarly, for the possession of a passport to be used to support an offender’s identity where a false credit card was being used, an example is to be found in the analysis provided in HKSAR v Zhou Jianguo and Anor, CACC 480/2005.  In regard to the latter case, it is also of note that D1 and D2 each admitted possession of two false passports.  This court adopted a starting point of 18 months’ imprisonment which was then reduced to 12 months’ imprisonment to take account of the guilty pleas and ordered that 6 months of this sentence should be served consecutively to the sentences imposed on the credit card offences.

7.It follows that the sentence of 3 years’ imprisonment on charge 12 in the present case represents a significant departure from the usual sentencing level for an offence of this kind and will, therefore, need to be reduced.

8.The question we now have to address, as I stated when giving leave, is whether the necessary reduction of sentence on charge 12 will provide any practical benefit to the appellant bearing in mind that only 3 months of that sentence was ordered to run consecutively to the other sentences.  We turn next, therefore, to a consideration of the sentences imposed for the credit card offences.

(2)     The deception offences

9.The appellant, as we have indicated, received a total of 4½ years’ imprisonment after trial for seven deception offences, all committed on the same day, which had resulted in goods worth just under $22,000 being obtained.  We have to decide whether, for six additional deception offences, 18 months’ imprisonment, over and above a sentence of 3 years’ imprisonment on the 1^st charge, was manifestly excessive particularly bearing in mind that these were effectively all committed as part of the same fraudulent spree.

10.Rightly, in our view, no criticism has been made of the adoption by the judge of 3 years as the appropriate starting point for each of the deception offences.  The judge, with reference to Chan Sui-to and Anor (above), was aware that the guidance in that case suggested sentences after trial of between 5 to 6 years’ imprisonment for those playing an active but not necessarily a key role in medium-sized operations involving between $50,000 and $150,000, where there was no elaborate planning and no ‘international’ element.

11.Lower down the scale, in Cheung Ka-wo Johnny (above), this court approved an overall starting point of 3 years’ imprisonment for credit card frauds involving less than $9,000.  Cheung was charged with three offences of using a false instrument (as well as one charge of deception) but we are satisfied, for the purposes of comparison with the present proceedings, that the precise nature of the charges in that case makes no practical difference.  That case was concerned with the fraudulent use of two counterfeit credit cards but significantly, where a distinction is to be found, there was no suggestion on the evidence that Cheung was a member of a larger syndicate whereas the present appellant was engaged in fraud on three occasions with at least one other accomplice.

12.In HKSAR v Cheng Sui-yin, CACC 468/2005, to which our attention has been brought by the respondent, the applicant was intercepted at the Lo Wu Border Control Point in possession of fourteen counterfeit credit cards which were purportedly issued by banks in Hong Kong although the bank card numbers related to credit cards issued in European countries and Turkey.  On these facts, the sentence of 4½ years’ imprisonment which had been imposed after trial was described in this court as being “in no sense manifestly excessive”.

13.Legal aid was granted after leave was given to the present appellant and we are grateful to Mr James Tze for his helpful written submission in which he, like Mr Sean, has provided us with useful arguments based upon recent decisions of this court.  Mr Tze argued that the appellant in the present case was more or less in the same position as D2 in Chan Sui-to’s case (above) where D2 had pleaded guilty to five deception offences committed on the same day resulting in property, valued at just over $16,000, which was obtained by the use of a forged credit card.  In addition, D2 had admitted two charges of using a forged identity card and one charge of possessing a false instrument, namely the forged credit card she had used to commit the deception offences.  This court acknowledged the finding of the sentencing judge that D2 had allowed herself to be influenced by D1 who had been engaged in running a credit card factory.  Curiously, having set out a sentencing guideline of “5 to 6 years after trial” for a medium-sized operation and having found that D1 was operating a medium-sized operation, this court stated that “the totality of the sentence on D1 should be four years before plea” which, inexplicably on these facts, fell below the guidelines it had just set out.  Having regard to D1’s guilty pleas, the court went on to impose a sentence of 3 years’ imprisonment.  D1 had pleaded guilty to offences involving, amongst other things, 36 false phone cards, 47 counterfeit credit cards and factory equipment including an encoder and an embosser.  Furthermore, the data from 384 credit cards appeared on various sheets of paper inside the premises D1 was using to make the false cards.  We can only say in relation to this decision that, while the general guidelines given are of some assistance, we do not find ourselves greatly assisted by the actual sentencing of D1 (Chan Sui-to) who appears to have been dealt with remarkably leniently.  D2’s position in that case, however, was obviously far less serious.  The Court of Appeal sentenced D2 to 2 years’ imprisonment in total, with all the sentences, including those for forged identity cards, ordered to run concurrently.  As we have already indicated, the current practice is to impose partially consecutive sentences for offences where an identity card or passport has been used or is in the possession of a credit card fraudster.

14.In almost every recent case involving the fraudulent use of credit cards, including Chan Sui-to’s case, emphasis has been laid, and properly so, on the potential losses that can be incurred by fraudulent activity of this kind.  Here, the appellant was not working entirely on her own and she was connected to the use of three counterfeit credit cards with the losses from those cards being incurred in a single day’s expedition.  As it happens, she was caught, quite fortuitously, when, late in the day, the car in which she was travelling with D3 and two others was stopped by the police at a roadblock.  Inside the car, the false credit cards and the stolen identity card the appellant had been using, all bearing the same name, were found by the police together with the goods she had obtained.

15.We have concluded on all the facts of this case that, whilst a 3-year sentence for each of the deception offences was a proper starting point, in totality the sentence for these offences should have been 3½ years’ imprisonment.  As this is a year less than the judge imposed on these charges, we find that the overall sentence for the deception offences was manifestly excessive.

Conclusion

16.Accordingly, this appeal is allowed.

17.On charges 1, 6, 8 and 9, we impose wholly concurrent sentences of 3 years’ imprisonment.  On charges 2, 3 and 4, we again impose sentences of 3 years’ imprisonment which are to run concurrently to each other, but we order that 6 months of this term is to be served consecutively to the earlier sentences, making 3½ years’ imprisonment in all.  In addition, we reduce the sentence on charge 12 to 12 months’ imprisonment and, because this offence provided an additional dimension to the appellant’s criminality, we order, as the judge in the lower court did, that 3 months of this sentence should be served consecutively to the other sentences.  In totality, therefore, the appellant will serve 3 years and 9 months’ imprisonment which represents an overall reduction of 12 months from the sentence she received in the court below.

Mr Eddie Sean, SADPP, of the Department of Justice, for the Respondent.

Mr James Tze, instructed by Messrs K C Ho & Fong (assigned by Director of Legal Aid), for the Appellant.