HKSAR v. Poon Yiu Fai

HCMA 223/2009

N THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 223 OF 2009

(ON APPEAL FROM KCCC 927/2009)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 16 April 2009

Date of Judgment: 16 April 2009

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J U D G M E N T

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1.The Appellant was charged and pleaded guilty in the Magistrate Court to two charges of using a false instrument contrary to section 73 of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong.

2.The particulars of the 1^st offence were that on 16 February 2009 inside Whampoa JUSCO, Kowloon, he used a forged Capital One Platinum MasterCard in the name of Poon Yiu Fai, which is his name, with the intention of inducing cashier of JUSCO to accept it as genuine, and by so doing to do or not to do some act to his own or another person’s prejudice.

3.The 2^nd offence also charged the Appellant that, on the same day, on another occasion, in the same shop he did use the credit card which he knew or believed to be false.

4.The brief facts which were admitted, was that on 16 February at 1828 hours, the Appellant entered the TSL Jewellery counter at JUSCO Whampoa and selected a few items.  The staff then took the items out from a display shelf.  The Appellant then collected an invoice from the staff, which the Appellant brought to the cashier of JUSCO, and tried to make payment with the counterfeit credit card.  The payment was rejected.  The Appellant took the card back from the cashier and quickly walked out of JUSCO and he was stopped by PW1 outside the door.  PW1 was the arresting officer.

5.The Appellant upon questioning, admitted to have used a counterfeit credit card to make purchases.  The Appellant was arrested and he admitted under caution that the credit card is a counterfeit credit card, and he had made a successful purchase earlier at 1620 hours on the same day.  The credit card was found to have had only two transactions on that day.

6.Subsequently, the police seized a merchant copy of a JUSCO credit card receipt in the amount of $14,592.00 from the Appellant and that was marked as Exhibit P3 which was to buy a gold chain.

7.The seized credit card was subsequently examined and found by the government chemist to be forged.  The pair of gold chains that had been purchased by the Appellant at 1620 hours in the amount of $14,592.00 were never found, so those were the facts.

8.The Appellant is aged 34 and has a theft record.  Since 1995, he had on seven previous occasions been in court.  He has been convicted on several occasions of offences of dishonesty, that of obtaining property by deception, burglary, robbery, obtaining services by deception.  His last conviction was in March 2005 when he was convicted of obtaining property by deception and using a false instrument for which he was given 12 months’ imprisonment concurrent.

9.In mitigation, it was said on his behalf, that, he has a wife and son in the mainland and that he is the sole breadwinner.  The learned Magistrate then took note of the relevant cases and the fact in this case, and considered that an appropriate sentence would be 18 months as a starting point for each of the two offences and giving the Appellant full credit for his pleas of guilty then reduced the sentences to 12 months on each charge.  Since the offences were carried out in the same store, he then decided to make the sentences concurrent.  So the Appellant was sentenced to a total of 12 months’ imprisonment.

10.The Appellant appealed against his sentence on the ground that it was too severe.  At the beginning of this hearing, I had drawn the Appellant’s attention to Form 102 that if he pursued his appeal, the court had the power to either increase the sentence or reduce the sentence or not interfere with the sentence.  He said he understood that but chose to pursue his appeal.

11.His ground of appeal is that since 2004, he has not committed another offence.  So for four years he had been crime free and that he had pleaded guilty.  He said that in his last conviction for a similar offence, he was only given a starting point of 9 months.  So he considered that the present starting point of 18 months was too high.  He had cooperated with the police, he said.

12.I see at the very start that these sentences are much too low.  These offences are prevalent in Hong Kong, and it have to meet with severe sentences in order to curtail this sort of criminal activity.  This case, although, on a scale of similar type of offences, cannot be considered to be the most serious of its kind.  However, though there was no evidence that the Appellant was part of a syndicate, there was some pre-planning because the forged credit card was in his name.  So he must have prepared for this enterprise by having this card made in his name.  He had used the card to purchase jewellery and the gold chains which he had purchased on the first occasion cannot be located.  It is clear therefore that the Appellant had intended to use the card as much as possible and the potential for loss is in my view therefore, not limited to what he has done.  If not for the fact of the alert cashier and the false credit card being declined, the credit card company would have suffered more losses.

13.Crimes of this nature calls for deterrent sentences because it would eventually affect the ordinary consumer.  It would also affect the international name of Hong Kong.  Taking into account also that this is not a first time offender the Appellant has committed the same offence previously and the sentences which he was given was not enough to deter him.  This is apparent from the way the Appellant had actually made a submission that he was only given 9 months starting point the last occasion whilst he was given more this time.  The reason he is being given more is because the last occasion the sentences were obviously insufficient to deter him.  These offences are serious.

14.The recent case of HKSAR v. Tui Lang, CACC 464/2006, which the learned Magistrate had referred to in his reasons for sentence was a 31-year old applicant, who had pleaded guilty, in the District Court to one count of using a forged credit card and possessing 2 forged credit cards.  He was given a starting point of 4 years’ imprisonment for each offence reduced to 32 months’ imprisonment.  The court in that case, reduced the sentence to one of two years’ imprisonment to be served concurrently on each charge, therefore the starting point was one of 3 years.

15.To be noted, is that the Court of Appeal in that case said that “if the facts of the offence pointed to a small unsophisticated operation involving only one or a few forged cards, uncomplicated by other evidence, materially linking the offender to a larger operation then a starting point of 3 years’ imprisonment or less was appropriate”.

16.In this case, the learned Magistrate had not sufficiently taken into account the fact that the Appellant had successfully made off with two gold chains.  He tried for a second time on the same day and his previous sentences had failed to deter him.

17.The potential for loss in this case is not a small one.  So I consider therefore that the sentences imposed by the learned Magistrate was insufficient.  I have to therefore reconsider the whole facts of the case and the sentencing (under section 119 of Magistracy’s Ordinance) in this case, proper starting point, to reflect the criminality, should be one of 21 months’ imprisonment.  I would have gone up to 24 months but because the Appellant is unrepresented, I will therefore impose the lower of the range and I would impose therefore a 21-month starting point for each charge.

18.As the learned Magistrate recognised that using a false instrument is more severe than possessing, but he failed to make that distinction in his sentence.  So having taken into account the Appellant pleaded guilty, I would reduce the sentence of each charge to 14 months’ imprisonment.  I will make 6 months of the 14 months’ imprisonment in the second charge consecutive to the sentence in the 1^st charge.  So the Appellant goes to prison for 20 months.

19.Therefore the Appellant’s appeal against sentences in the ground that they were too severe is dismissed.

Mr Vincent Wong, Senior Public Prosecutor, for the Respondent

The Appellant in person