HKSAR v. Au Yeung Shu Sang

CACC 474/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 474 OF 2006

(ON APPEAL FROM DCCC NO. 858 OF 2006)

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

BETWEEN

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

Before : Hon Stuart-Moore Ag CJHC and Stock JA in Court

Date of Hearing : 20 July 2007

Date of Judgment : 20 July 2007

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

J U D G M E N T

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

Hon Stock JA (giving the judgment of the Court):

1.This applicant pleaded guilty in the District Court to four charges: two of obtaining property by deception and two of using a false instrument intending to induce its acceptance as a genuine instrument.  On 14 November 2006 he was sentenced by Deputy Judge Woodcock to a term of two years and eight months’ imprisonment and this is his application for leave to appeal against that sentence.

2.On the afternoon of 25 July 2006, the applicant entered Watsons in the United Centre and there used a forged credit card in his name to obtain goods to the value of about $1,000.  This was the second charge.  Then he went into another branch of Watsons, in nearby Admiralty Centre and there he used the same credit card to obtain goods to the value of just over $2,000.  This was the first charge.  He met another man who was the second defendant before the court below, and handed him the goods, the subject of the first charge and it was later established that he had earlier handed him the goods which were the subject of the second charge.  Then the applicant went to a cosmetics shop in Queensway Plaza where he tried to obtain some cosmetics worth $1,240 with the same forged card but when his attempt to use that card failed, he tendered a different forged card, also bearing his name, again unsuccessfully.  He was then arrested.  He said that the cards had been given to him by a friend to pay for the goods purchased, that he knew that they were forged, and that he was in receipt of commission for shopping with these cards.

3.The judge concluded that the second defendant, who is not before us, was obviously there to act as a collection point for the goods that had been dishonestly obtained.  She concluded also that he and the second defendant were mere cogs in a wheel, not acting alone; and she noted in particular that this applicant had been supplied with cards that had been manufactured specifically for him.

4.She noted also this applicant’s poor criminal record.  At the time of these offences, the applicant was aged 36 years.  He had offences going back to 1984 but, more pertinently, he had been convicted in May 2003 of obtaining property by deception and using a false instrument and had then been sentenced to a term of eighteen months’ imprisonment.  In March 2005 he had been convicted of theft and possession of dangerous drugs and was sent to a drug addiction treatment centre.  In October 2005 he was again convicted of obtaining property by deception and of theft and was sentenced to twelve months’ imprisonment.  It follows that the offences with which we are concerned were committed shortly after his release from that latest term of imprisonment.

5.In sentencing this applicant, the judge said that the relevant facts were that there were two cards involved; the items were not of great value; the two men were obviously not acting alone; and the offences were all committed on the same day.  She said that she took a global approach to the sentence and adopted a starting point of four years’ imprisonment and giving the normal one-third discount to reflect his plea of guilty, she sentenced him to a term of two years and eight months’ imprisonment in respect of each charge, and ordered those terms to run concurrently.

6.Mr Tracy, for the applicant, contends that the judge has erred in principle, first, by taking a global approach to sentence rather than a separate starting point for each offence and, second, in omitting to state the degree to which she was enhancing sentence by reason of the applicant’s prior criminal record for like offences.  He further says that the resulting sentence was in any event manifestly excessive because the value of the goods was very low and does not sit congruously with other sentences for credit cards offences.

7.We agree that the judge ought to have given an appropriate starting point for each separate offence – although in this particular case we do not think that there is any resulting difference.  We agree also that she ought then to have specified the degree to which she was aggravating the sentence by reason of the applicant’s criminal record.  She ought then to have made an appropriate deduction for mitigating factors and, finally, she ought to have addressed the question of totality.

8.In his helpful written submission, Mr Tracy has taken us to a number of cases in order to compare the sentence imposed in this case.  These cases are always fact-specific although a guideline of sorts is given by the factors referred to R v Chan Sui-to & Anor [1996] 2 HKCLR 128.  In this particular case, the case before us, the value of the goods, it is true, was low but as is said in many of the authorities, this fact, although relevant, must be viewed in the context of the need to stamp out credit card fraud and it must further be recognized, in a case such as this, that these cards were no doubt intended for continued use and would certainly have been used further for multiple offences, perhaps individually of small value, had not the police intervened when they did.  This case had the aggravating feature that the applicant was not acting alone, and was obviously part of a wider organisation that had caused cards to be printed specifically for him.

9.We take the view that an appropriate starting point for each offence would have been one of three years and six months’ imprisonment and that six months in addition for each was warranted by reason of the fact that this applicant was a persistent offender who had clearly not responded to sentences previously imposed and had committed these offences shortly after his release from prison.  From the resulting four years’ imprisonment is to be deducted one-third for his plea of guilty resulting in a sentence on each charge of two years and eight months’ imprisonment.  It would in our judgment be appropriate to order the sentences to run concurrently.  This accords, as it happens, with the individual sentences and the total sentence imposed by the judge so that whilst, for the reasons we have stipulated, we grant leave, and treat the hearing of the application as the appeal, we dismiss the appeal.

Mr M.P. Tracy, instructed by Messrs Burke Fung & Li, assigned by DLA for the Applicant

Mr Richard Ma, SGC of the Department of Justice for the Respondent