HKSAR v. Yau Hoi Shan Shanly

CACC 209/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 209 OF 2006

(ON APPEAL FROM DCCC No. 216 of 2006 )

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Before: Hon Yeung JA and Hon Lunn J in Court

Date of Hearing: 14 February 2007

Date of Judgment: 14 February 2007  

Date of Handing down Reasons for Judgment:  8 March 2007

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reasons for judgment

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Hon Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.On 14 February 2007, we dismissed the application for leave to appeal against sentence. We indicated that we would hand down our reasons in writing and this we now do.

Background

2.On 13 June 2005, the applicant – Yau Hoi-shan, Shanly, together with the 2^nd defendant, and accompanied by two children, tried to use two different forged credit cards, issued to foreign banks, to purchase a mobile phone. When the forged credit cards failed to get the approval code, she paid cash deposit of $3,000.

3.When the 2^nd defendant returned on 15 June 2005 to collect the mobile phone, the police followed her, leading to the arrest of the applicant who was then sitting at the rear passenger seat of a car with two children. The police found another forged credit card in a storage compartment in the driver’s door [charge 8] and various items of goods inside the boot of the car.

4.The applicant admitted to have tried to use the two forged credit cards that she subsequently threw away on 13 June 2005, and had used the forged credit found in the car to make five purchases at different shops on 15 June 2005 [charges 3-7]. The total value of the purchases was just over $2,700.

5.The applicant subsequently appeared before Deputy Judge Thomas in the District Court on an indictment consisting of two charges of using a false instrument (“the 1^st and 2^nd charges”), five charges of obtaining property by deception (“the 3^rd to 7^th charges”) and a charge of possessing a false instrument (“the 8^th charge”).

6.The applicant pleaded guilty to all eight charges and was sentenced to 16 months’ imprisonment on each of the charges. The judge ordered the sentences on the 1^st and 2^nd, and the 3^rd to 7^th charges to run concurrently. However, the judge also ordered 6 months on the 3^rd to 7^th charges and 8 months on the 8^th charge to run consecutively. The total sentence on the applicant is therefore 30 months’ imprisonment.

7.The judge took the view that it was a small-scale operation, but the applicant took an active part as she decided which stores to operate against. The judge further took the view that there was an international dimension to the case as it involved credit cards of banks in Saudi Arabia and Thailand, although the applicant was entitled to say that she had no involvement with such international dimension.

8.The judge adopted a 24 months’ starting point for each of the charges and reduced it by one-third on account of the guilty pleas. The judge pointed out that charges 3 to 7 involved a different credit card and that charge 8 involved a credit card with potential for further losses. The judge therefore ordered 6 months on charges 3 to 7 and 8 months on charge 8 to run consecutively, making a total sentence of 30 months’ imprisonment. In ordering the 8 months’ consecutive term for the 8^th charge, the judge made the following comments:

“Finally, with regard to Charge 8, that credit card was found in your car, or the car that you were driving. Clearly, there was the potential for further losses even though the likelihood is that if you had used that card the losses would have been small…”

9.The applicant now seeks leave to appeal against sentence.

Grounds of Appeal

10.Mr Albert Poon, counsel for the applicant, argues that the judge was factually wrong in treating the forged credit card in the 8^th charge as a separated forged credit card from that in the 3^rd to 7^th charges, and had therefore erred in ordering 8 months on the 8^th charges to run consecutively. He suggests that if the judge was concerned about the potential losses, he should have made an upward adjustment to the starting point for charges 3 to 7 and should not have ordered a consecutive term for the 8^th charge.

11.Mr Poon also emphasizes that the applicant used her genuine identity card when committing the 1^st and 2^nd charges, which were attempts and/or inchoate offences and should therefore attract a lower starting point.

12.Mr Poon suggests that a total sentence of 22 months would be sufficient to reflect the applicant’s overall criminality. He further suggests that as the applicant or her family is now prepared to make a full restitution of the $2,700 and therefore she should be entitled to a meaningful reduction in sentence.

Discussion

13.There is no dispute that the forged credit card in the 8^th charge was the one used by the applicant to commit the 3^rd to 7^th charges.

14.The judge said of the credit card found in the glove compartment of the car: “Clearly, there was the potential for further losses even though the likelihood is that if you had used that card the losses would have been small…”

15.However, the judge had earlier mentioned, “It appears that you then used the third card to obtain a number of items of low value from a number of retail stores and shops”, and then “the third card was found in the glove compartment of the car along with some of the items that you had obtained by use of that card”.

16.Despite the concession made by Mr Robert K.Y. Lee for the respondent in his initial written submission, the suggestion that the judge mistakenly took the credit card under the 8^th charge as a separate credit card is, in our view, not correct. The judge had probably omitted the word “again” when he talked about if the applicant “had used that card the losses would have been small”.

17.The judge was clearly aware that the credit card under the 8^th charge was the one used by the applicant to commit the 3^rd to 7^th charges.

18.In any event, the judge’s emphasis was only on the “potential for further losses”.

19.After the applicant’s attempt to use two forged credit cards on 13 June 2005 failed, she discarded them. Having successfully used the 3^rd forged credit card on 15 June 2005 to make five purchases, the applicant still kept it in the glove compartment of the car. The applicant’s intention to continue to use such forged credit card, if the police had not arrested her, was obvious.

20.In HKSAR v Watt Siu Hung (unrep Crim App No 93 of 2001), the value of the goods obtained on two forged credit cards was slightly in excess of $3,000. The Court of Appeal upheld a starting point of 3 years’ imprisonment and further commented that:

“There was every reason to believe that but for his arrest he could have continued to use the credit cards.”

21.In HKSAR v Ng Swee Thiam [2000] 1 HKLRD 772, the court also commented at p 788 that the amount proved to have been lost by the fraudulent use of the credit cards “pales into insignificance when consideration is given to the potential for losses in the future” and that “it is this potential for losses which is the most important consideration”.

22.The judge’s emphasis on the “potential for further losses” is perfectly justified.

23.Although the applicant’s attempts to use the forged credit cards on 13 June 2005 were unsuccessfully, we failed to see how such failure would have reduced her criminality.

24.We are not concerned with a situation where an accused stops before the full offence is committed. The applicant had in fact done everything necessary for the commission of the full offence and only failed because of the security measure taken by the credit card companies.

25.The fact that the applicant had used two forged credit cards successively, aided with her genuine identity card, indicated her boldness and the extent she was prepared to go to commit the offences.

26.We do not agree with Mr Poon’s submission that the 24-month starting point adopted by the judge for the 1^st and 2^nd charge is manifestly excessive.

27.This Court has repeatedly emphasized that credit card offences are widespread and prevalent, and must be dealt with severely. Litton JA (as he then was) observed in R v Kwan Ying Ho (unrep Crim App No 527 of 1992 that, “Credit card frauds have in recent years been an insidious poison in the community. It affects a large number of citizens. It erodes the credit card system and damages Hong Kong’s standing in the international community”.

28.In R v Chan Sui To & Another [1996] 2 HKCLR 128, Yang CJ, after referring to a number of cases involving forged credit cards, said at p 134:

“Allowing for the different facts and the varying degrees of culpability, it is impossible to formulate a set of principles of sentencing from those decisions. We think however it would be helpful to the courts if they were guided by some criterion. We would therefore suggest that an accused who plays an active but no 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 five to six years after trial. Sentences may be adjusted upwards or downwards according to circumstances.”

29.We have examined many cases of small-scale credit card fraud. It appears that the starting points for credit card offences adopted in those cases often exceeded the starting points adopted by the judge.

30.The 2^nd defendant in Chan Sui To (supra) used one forged credit card to purchase various items to the total value of about $16,000. She was also found to be in possession of another forged credit card. The judge found her to be a mere courier and she had a clear record. Her total sentence for the forged credit card offences, on a plea of guilty, was 2 years’ imprisonment.

31.In HKSAR v Yim Wai Ling CACC 35/2004, the defendant tried unsuccessfully to use two forged credit cards to purchase a computer and a digital camera.  Whilst on bail for those offences, the defendant was found to be in possession of another forged credit card and an identity card belonging to someone else, and on a plea of guilty, an overall sentence of 30 months was considered appropriate.

32.In HKSAR v Poon Chu CACC 55/2000, the defendant used three forged credit cards to pay for goods and services to the value of $10,000 to $11,000. He was also found to be in possession of a fourth forged credit card and an identity card belonging to another. On a plea of guilty, the defendant was sentenced to 32 months’ imprisonment.

33.The applicant tried successively to use two forged credit cards purportedly issued by foreign banks to purchase a mobile phone. She then used a third forged credit card to make five purchases from different shops. She still kept the third forged credit card, no doubt with the intention of making further use of it in appropriate circumstances.

34.The applicant had pleaded guilty to a total of eight charges.

35.In our view, neither the individual sentence nor the overall sentence of 30 months’ imprisonment, despite her having a clear record and her pleading guilty to the charges, can be said to be manifestly excessive.

36.In some cases, restitution can be a valid factor in mitigation, sometimes a powerful one; however, we do not agree this is one such case. Neither the applicant’s criminality, nor the sentence, in our view, should be reduced by the applicant’s belated offer, by herself or through her family, of restitution.

37.We therefore dismissed her application for leave to appeal against sentence.

Mr Robert K Y Lee, SGC of the Department of Justice for the Respondent.

Mr Albert Poon instructed by Messrs Victor Chiu Tsang & Partners for the Applicant.