HKSAR v. Wong Chin Hang

CACC409/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 409 OF 2008

(ON APPEAL FROM DCCC 749 AND 806 OF 2008)

BETWEEN

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

Before : Hon Stuart-Moore VP and McMahon J

Date of Hearing : 30 April 2009

Date of Judgment : 30 April 2009

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

JUDGMENT

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

McMahon J (giving the judgment of the Court) :

1.The 24-year-old applicant was convicted on his own plea before Deputy District Judge R. Chan of 11 offences of using false credit cards contrary to section 73 of the Crimes Ordinance, Cap. 200.  

2.The judge took a starting point of sentence of 2 years’ imprisonment in respect of each offence, which was reduced to 16 months to reflect the applicant’s plea of guilty. 

3.The judge, after considering the appropriate totality of sentence, ordered that three months of each of the sentences imposed in respect of the offences the subject of charges 2 to 11 be served consecutively to each other and to the sentence imposed in respect of the 1^st charged offence.  That resulted in a total sentence of 46 months’ imprisonment.  

4.The facts of the case were that the applicant had been introduced by a friend to an unknown male who had offered to provide the applicant with false credit cards and reward the applicant with a sum of $1,000 for every $10,000 worth of purchases he made by using those cards.  The applicant provided his personal particulars for the purpose of the manufacture of the false cards.  Subsequently the applicant was contacted by the unknown male and arrangements were made for the applicant to collect the three false cards.  The applicant then used the cards to make or attempt to make 11 purchases of gift coupons from various supermarkets and a travel agency to a total value of about $34,000.  Those transactions were the basis of the 11 charged offences and took place on three days during a six-day period. 

5.Mr Selwyn Yu, who appears for the applicant, argues that the total sentence of 46 months’ imprisonment was manifestly excessive because :

(1)     the judge erred in failing to order all of the sentences to be served concurrently, when the offences formed part of the same transaction, and

(2)     failed to arrive at the proper totality. 

6.So far as the first complaint of Mr Yu is concerned we can see nothing in principle which would require the imposition of wholly concurrent sentences in respect of the 11 offences.  Almost by definition each transaction was separate from the other.  Even in the circumstances of the transactions the subject of charges 8 and 9, which perhaps are most capable of supporting Mr Yu’s argument in this regard, as the same supermarket staff member was the victim of both offences and where the transactions took place within a few minutes of each other, the judge was entitled to regard them as being separate, for the simple reason that on each occasion individual purchases were made involving the presentation of a card and the preparation of separate documentation. 

7.In respect of each of the other offences a different staff member from one of four supermarkets and one travel company were the victims of each transaction.  There is no basis at all to suggest that, in those circumstances, the offences formed part of a single transaction. 

8.So far as Mr Yu’s second complaint is concerned Miss Mary Sin for the respondent accepts that the totality of sentence is manifestly excessive. 

9.We agree.  The operation with which the applicant was involved could be described as small scale, although it displayed some sophistication in the distribution of the cards.  There seem to have been relatively few people involved in the syndicate although the applicant was a reasonably active if gullible member, providing his personal particulars for the use of the syndicate and using three individual cards encoded with those particulars, for a total of 11 transactions over the three days.  The total value of the property obtained by the use of the cards was again relatively small, although that is, by itself, not a determining factor. 

10.Taking these facts into account and bearing in mind the comments of this court in HKSAR v. Cheung Ka Wo Johnny [2002] 2 HKC 517 and HKSAR v. Ng Pui Ling Akina (unreported) CACC519/2005 to the effect that even a single transaction in some circumstances may attract a starting point of sentence of 3 years’ imprisonment, it may be said that the starting point of sentence of 2 years’ imprisonment adopted by the judge in respect of each offence appears lenient, but having regard to the applicant’s circumstances we accept it was appropriate.  We do not intend to interfere with that aspect of the case, the real question being that of the appropriate totality. 

11.Considering the circumstances we have set out above as to the scale and nature of the syndicate and the applicant’s role in it, we are satisfied that the totality of sentence arrived at by the judge would have been appropriate had it been imposed in respect of a larger operation.  Taking into account the applicant’s pleas of guilty we are satisfied the total sentence was manifestly excessive and that a proper totality would have been one of 2 years 8 months’ imprisonment.  That would reflect a notional overall starting point of sentence of 4 years’ imprisonment. 

12.Accordingly this appeal must be allowed, and to achieve the appropriate totality we order that the sentences imposed in respect of charges 2 to 5 be served concurrently to each other but so far as 8 months is concerned, consecutively to charge 1 and that charges 6 to 11 be served concurrently to each other but so far as 8 months is concerned, be served consecutively to the sentences imposed in respect of other charges.  That results in a total sentence of 2 years 8 months’ imprisonment.  That represents a reduction in the applicant’s sentence of 14 months and to that extent the appeal succeeds.  

Ms Mary Sin, SADPP of the Department of Justice, for the Respondent

Mr Selwyn Yu, instructed by Messrs Tang, Lai & Leung, assigned by the Legal Aid Department, for the Applicant