The Queen v. So Chung Kwong

IN THE COURT OF APPEAL

1993, No.455
(Criminal)

BETWEEN

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Coram: Hon. Yang, C.J., Power, V.-P. & Keith, J

Date of Hearing: 10^th November 1995

Date of Judgment: 10^th November 1995

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JUDGMENT

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Power, V.-P. (giving the judgment of the Court):

1. The applicant was charged with 14 co-defendants who altogether faced 20 charges. He was found guilty of one charge of conspiracy to obtain property by virtue of forged document (charge 5), one charge of conspiracy to defraud (charge 17), and one charge of possession of implements of forgery (charge 18). The charges all involved credit card fraud. The applicant was sentenced to two years’ imprisonment on each of the charges and these were ordered to be concurrent.

2. It was the Crown case that on different occasions the persons involved in the fraudulent conduct had come together to plan, arrange and participate in the production, handling and use of forged credit cards to obtain goods, services and money in Hong Kong and in Malaysia. The syndicate would obtain and supply credit card information and pay for the production of forged credit cards. It must be said that it was agreed that this applicant was not involved in the production of forged credit cards but in their use. The intention of the syndicate was to use forged credit cards through various members of the syndicate in Hong Kong and in Malaysia and the proceeds of the use were to be split up among those who participated.

3. As regards Charge 5, it was the Crown case that in around July 1991, Mr. Chan Wing-shing (“Mr. Chan”) was introduced to Mr. Chow Koon-keung (“Mr. Chow”) and they discussed the use of forged credit cards to purchase goods from Hong Kong shops. Two other persons were involved, namely the applicant and the 2nd defendant at trial. On 12^th July, those four persons went to the Watson’s Department Store at Lok Fu Shopping Centre with the intention of purchasing goods by using forged cards. Mr. Chow and Mr. Chan went into the shop while the applicant remained outside as a look-out and the 2^nd defendant remained nearby in a car. After purchases were made, Mr. Chow was arrested by the police when he was leaving the shop but the other three were able to flee taking with them the goods that had been purchased.

4. Charge 17 occurred in October 1991. It was the Crown case that the applicant was in charge of a syndicate which included a number of other defendants who were to travel to Malaysia and use forged credit cards at the Casino in Genting Highlands. It seems that cash advances could be obtained at the casino on the basis of a credit card as long as the person involved could verify his identity. The applicant had recruited Chow Kwon-keung to join the syndicate and instructed him to obtain cards. In all there were 28 forged credit cards. The cards being used purported to have been issued by the Hong Kong Bank and they bore the credit card account details of Hong Kong cardholders. They were distributed to the members of the syndicate who used them in Malaysia to obtain some &600,000 in goods and cash advances.

5. As to Charge 18, after the conclusion of the first Malaysian trip, the syndicate, headed by the applicant, immediately organized another trip to Malaysia. 25 forged credit cards and 4 identity cards were supplied to the syndicate. Finance was provided by the 6^th defendant at trial and by a Mr. Wong King-wah to cover the cost of the trip and the forged cards were distributed to the members of the syndicate.

6. On 22^nd October 1991, the 2^nd defendant and two others travelled to Malaysia, one of whom carried 15 forged credit cards and three forged identity cars. Also on the trip were a Mr. Chan Man-yee and a Mr. Ma Kwok-keung. They, together with Chow Kwan-keung, collected ten forged credit cards and two forged identity cards and Mr. Chan and Mr. Ma acted as couriers taking those cards to Malaysia. It was arranged that the members of the syndicate would meet in Malaysia in order to use the forged credit cards.

7. The trial judge when sentencing set out the involvement of the applicant, who was the 1^st defendant at trial. He gave consideration to the personal particulars of the applicant saying that he was 21, single, lived with an older sister and had previously worked as a waiter in a restaurant. He detailed his record. He stated that he believed that the totality principle applied and that “the overall starting point from the totality principle is a sentence of 5½ years (this in general terms) imprisonment. This takes into account the seriousness of the offences and the effect on the victims and the effect of the commercial reputation of Hong Kong.” He did not indicate how he had arrived at the starting point of  5½ years but it seems that he may have been guided in this regard by the case of R. v. Lau Kwok-hing, Jackie which adopted that starting point. The judge went on:

“Further I have formed the view that defendant was a ring leader in the criminal activities.

In relation to this he took part in the organization, he took control of ‘receipts’ from uttering at gambling establishment. He obtained the benefit of a colleague’s business class air passage when the colleague was upgraded.

As against that he did not partake in the actual manufacture of the cards nor it appears in obtaining the genuine cards from unsuspecting members of the public. This form also, I said earlier, steps incurred prior to money to be obtained.

Defendant was not shown to be a mastermind nor one with overall responsibility from the obtaining of genuine cards right through to the uttering and obtaining of goods of cash.

Nevertheless as I have indicated defendant was a major player. He, I believe, was the most culpable of all defendants who came before me and there such must pay the forfeit. There are the aggravating circumstances of his involvement, and deterrence and denunciation by the community must be considered.

On the 5^th charge you are sentenced to a term of imprisonment for 2 years. On the 17^th charge you are sentenced to a term of imprisonment for 2 years. On the 18^th charge you are sentenced to a term of imprisonment for 2 years.

These sentences are to be served consecutively each with each other.

Total of 6 years imprisonment.”

8. The applicant is represented today before us by Mr. Macrae who in his first ground of appeal has argued that the judge erred in his approach to the determination of what should be the proper sentence. He submits that the proper approach was that indicated in The Attorney General v. Chan Piu-sang. We are satisfied that there is considerable force in that submission. Our concern here, however, is whether, at the end of the day, the sentence imposed was appropriate given the criminality involved in the transactions the subject of the charges.

9. The trial judge, Mr. Macrae points out, having said that 5½ years was the starting point, inexplicably, in the outcome sentenced the applicant to 6 years. Was the totality appropriate in all the circumstances? The judge appears, as we have said, to have taken 5½ years from R. v. Lau Kwok-hing, Jackie, and to have been indicating it as a general starting point in relation to cases involving credit card fraud but not necessarily as one appropriate to the case before him.

10. The thrust of the argument of Mr. Macrae was that the sentences imposed in other credit card fraud cases were in the vicinity of 5, 5½ or 6 years, but that these cases were, on their facts, much more serious than the present case and that the present case warranted a sentence somewhere below those imposed in the cases to which he referred. We are not generally very much assisted by looking at the facts of other cases unless they set out guidelines or unless they have some particular feature which makes reference to them relevant. The applicant was deeply involved in very substantial credit card fraud with international ramifications. The planning was careful, detailed and effective. This might not be the most serious case of its kind, but it involved a series of a grave offences which, as the judge indicated, given the wide spread use of credit cards in our community and indeed internationally, struck at the heart of business probity. The offences also called into question the reputation of Hong Kong as a business centre as the false cards emanating from Hong Kong were used fraudulently in Malaysia. Having considered all of these matters, we are satisfied that th sentence of six years was not an unduly severe one and we find ourselves unpersuaded that there is any ground for interfering therewith. The application must, therefore, be refused.

Mr Kevin P. Zervos, S.C.C. (Crown Prosecutor)  for the Respondent.

Mr. Macrae instructed by Messrs. David Ravenscroft & Co. for the Applicant.