HKSAR v. Chau Yiu Cheong

CACC 363/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 363 OF 2008

(ON APPEAL FROM DCCC NO. 516 OF 2008)

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Before: Hon Hartmann JA and Wright J in Court

Date of Hearing: 3 June 2009

Date of Judgment: 3 June 2009

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J U D G M E N T

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Hon Hartmann JA (giving the Judgment of the Court):

1.On 20 October 2008, having pleaded guilty to 3 charges of obtaining property by deception, contrary to s.17(1) of the Theft Ordinance, Cap. 210, the applicant was sentenced by Deputy District Judge Glass to a period of 5 years and 10 months’ imprisonment.  He now seeks leave to appeal that sentence.

2.In respect of each offence, the applicant used a stolen credit card to purchase items of jewellery: in the first charge, 2 mobile telephones with diamonds inset for a price of $108,000; in the second, a diamond ring for a price of $588,000, and, in the third, a further diamond ring for a price of $820,000.  In respect of the third purchase, the credit limit on the stolen card was insufficient to meet the full purchase price but it was used to secure a deposit of $300,000 on the ring.

3.The offences were committed over a two-week period in early 2008, the applicant playing his part as a member of a criminal syndicate, there being no evidence as to the size of the syndicate or the scope of its operations.

4.In assessing sentence, the judge took as his primary consideration the relatively high value of the targeted items.

5.Accordingly, in respect of the first charge, the judge took as his starting point a period of 4 years’ imprisonment, allowing a one-third reduction for the plea of guilty.  This resulted in a sentence of 32 months.

6.In respect of the second charge, the judge took as his starting point a sentence of 5 years and 6 months’ imprisonment, the discount of one-third reducing this sentence to one of 44 months.

7.In respect of the last charge, the judge took as his starting point a period of 6 years’ imprisonment, the one-third discount reducing this sentence to one of 48 months.

8.Other than the applicant’s plea of guilty, there were no grounds of mitigation.  The applicant had a record of dishonesty including a sentence of 3 years’ imprisonment imposed on him in 1999 for the exact same offence of obtaining property by deception.

9.The three sentences, added together, amounted to a period of imprisonment in excess of 10 years and, in seeking to ensure that the overall sentence was appropriate to the overall culpability of the applicant, the judge reduced each sentence so that the total period to be served amounted to only 5 years and 10 months.

10.In seeking to appeal that sentence, the applicant has effectively advanced two grounds.  First, he has contended that the total of the three sentences exceeded the court’s jurisdiction.  Second, he has contended that the starting point chosen by the judge in respect of each offence was too high, in one instance the starting point being contrary to this Court’s own guidelines. 

11.The first ground is misconceived.  S.82 of the District Court Ordinance, Cap. 336, provides that, where two or more terms of imprisonment are passed by the court, the aggregate of those sentences shall not exceed seven years.  In the present case, the sentences as finally calculated by the judge and imposed upon the applicant, when collected together, came to a total of 5 years and 10 months.  The aggregate of the sentences did not therefore exceed seven years.

12.Nor do we find any substance in the second ground of appeal.  In its judgment in R v Chan Sui To and Another [1996] 2 HKCLR 128, this Court acknowledged that, when members of criminal syndicates operate to commit credit card fraud, bearing in mind that the facts of each case are different and that the culpability of syndicate members varies, it is not possible to set down any specific sentencing guideline.  However, by way of a broad criterion; that is, a broad standard by which individual sentences can be judged, the court suggested that –

“… an accused who plays an active but not necessarily a key role in a medium sized operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of 5 to 6 years after trial.”

13.In the present case, while nothing was known of the size of the criminal operation, the judge acknowledged the obvious; namely, that the applicant played an active and important role, having the responsibility of actually using the stolen credit cards to purchase goods.  He further took into account the high value of the goods that were purchased or secured by deposit, the most expensive being in excess of $800,000, the least expensive being in excess of $100,000.

14.In the circumstances, in our view, the starting points chosen by the judge were appropriate.  Indeed, it may be said that, in reducing the individual sentences to take into account the applicant’s overall culpability, the judge erred on the side of generosity.  This Court has emphasised on a number of occasions that severe sentences should be imposed on those who engage in credit card fraud.  In HKSAR v Chen Wing Hong CACC 40/2005 the court observed that in the world today –

“… the integrity of the credit card system is highly important and those who attempt to beat the system by fraudulent methods necessarily erode the confidence which people are entitled to place on this aspect of modern commercial life.”

15.The application is therefore dismissed.

Ms Kathie Cheung, SPP, of Department of Justice, for the Respondent

The Applicant in person