HKSAR v. Luo Xiuhong

CACC339/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 339 OF 2010

(ON APPEAL FROM DCCC NO. 828 OF 2010)

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BETWEEN

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Before : Hon Yeung, JA and Saw J in Court

Date of Hearing : 26 May 2011

Date of Judgment : 26 May 2011

Date of Reasons for Judgment : 9 June 2011

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REASONS FOR JUDGMENT

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Hon Saw J (giving the Reasons for Judgment of the Court) :

1.On 1 September 2010 the applicant pleaded guilty in the District Court to :

(i)  One charge of Conspiracy to obtain property by deception, contrary to section 17(1) of the Theft Ordinance, Cap. 210 and sections 159A and 159C of the Crimes Ordinance, Cap. 200 (the 1^st charge).

(ii)  One charge of Possession of a forged travel document, contrary to section 42(2)(c)(i) and (4) of the Immigration Ordinance, Cap. 115 (the 2^nd charge).

She was sentenced by H.H. Judge Longley to (i) 2 years and 8 months’ imprisonment on the 1^st charge; (ii) 12 months’ imprisonment on the 2^nd charge.  

2.The judge ordered that 4 months of the term of imprisonment of the 2^nd charge be consecutive to the sentence of the 1^st charge. Thus the total sentence he imposed was 3 years’ imprisonment.

3.The applicant sought leave to appeal the sentence on the 1^st charge only.

4.On 26 May 2011 we granted leave to the applicant and treating the hearing as the appeal we reduced the sentence on the 1^st charge from 2 years 8 months’ imprisonment to 2 years 4 months. This resulted in a reduction in the total sentence from 3 years to 2 years 8 months’ imprisonment.  We indicated that we would hand down our reasons in due course.  These are our reasons.

The offences

5.The facts admitted by the applicant were to the following effect.  In early February 2010 she met Paul (the person named in the charge as her co-conspirator).  Paul had agreed to provide her with a Singaporean passport and in discussions suggested to her and she agreed that if she were to come to Hong Kong and make purchases with credit cards provided by him he would give her 30% of the price of the goods she purchased.

6.On 27 March 2010 she came to Hong Kong with the Singaporean passport and several credit cards.  The Singaporean passport was in the name of Ho Sally as were three Mitsui Sumimoto Mastercards.  A fourth credit card, a Unibanco Mastercard, was in the name of Liu Fang.  The credit cards and the passport were forgeries.

7.On 23 March, the applicant made two successful purchases at pharmacies in Mongkok of goods valued in excess of $8,000 using one of the forged Mitsui Sumimoto credit cards.  She was arrested the following day shortly after she attempted to purchase a mobile telephone in Tsimshatsui also with one of the forged Mitsui Sumimoto credit cards (after the sales staff became suspicion and the police were alerted.)

The sentences

8.When determining the appropriate starting point for sentence for the 1^st charge, the judge took into account the fact that the applicant had only been successful in two of the three transactions but at the same time accepted that had the applicant not been apprehended she would have undoubtedly gone on to make or attempt to make further purchases.  He also considered that a serious aggravating factor was the fact that the applicant had come to Hong Kong armed with the forged credit cards and passport for the express purpose of committing offences.  He said of this factor :

“Had the conspiracy not involved a cross border element. I would have regarded a starting point of 3 years’ imprisonment appropriate for the conspiracy charge. The cross border aspect, however, in my view, warrants this court adopting a higher starting point of 4 years’ imprisonment on that charge.”

9.Of the applicant’s role, he said this :

“I bear in mind that your role was simply to enter Hong Kong and present the credit cards in exchange for goods, but that of course, was an essential role in this operation.”

The application

10.No issue was taken with the sentence of the 2^nd charge of 18 months’ imprisonment discounted to 12 months’ imprisonment to reflect the plea of guilty.  No issue was taken with the order that 4 months of that term be served consecutively to the term on the 1^st charge.

11.The focus of the application before us was the starting point of 4 years’ imprisonment for the 1^st charge.

12.Mr Giles Surman on behalf of the applicant submitted “that the starting point for sentence in respect of the 1^st charge was too high and the resulting sentence thus manifestly excessive.”

13.The Court of Appeal has in The Queen v Chan Sui To and another [1996] 2 HKCLR 128, 131F-H has given guidance as to the factors to be taken into account when determining the seriousness of an offence of this type.  These are :

“1. The size of the operation e.g. whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards.

2. The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent.

3. Whether there is an international dimension.

4. Whether the accused played a major role, e.g. running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he is a mere ‘cog in the wheel’ as a courier or a custodian or keeper.

5.  Whether there is a plea of guilty.”

14.In HKSAR v Poon Cho Shu, CACC55/2000, a case we were referred to by Mr Surman, Yeung J (as he then was) noted that where an accused is in possession of several forged credit cards in the one name and also has in his or her possession an identity document in that same name this may indicate that the offence is more serious than others.  The Court of appeal reduced the starting point for sentence of 4½ years to 3 years.  However there was not, as there is here, the aggravating factor of the international component.

15.In HKSAR v Kita Yasushi and another, CACC470/2006.  Both applicants were arrested as they were in the process of purchasing Rolex wrist watches using forged credit cards.  Each was also in possession of a forged passport in the same name as the forged credit card.  Each of the applicants was also in possession of three other forged credit cards in the same name as their respective forged passports.

16.They were each charged with :

(i)  Using a false instrument (the false credit card);

(ii)  using a false passport; and

(iii)  possession of false instruments (the other credit cards).

17.They were each sentenced to total terms of imprisonment of 32 months — the judge having adopted a starting point of 4 years’ imprisonment on each charge.  (This was criticized by the Court of Appeal as being an erroneous approach and that appropriate individual starting points for each of the charges which properly reflected its criminality was called for.)

18.The Court of Appeal allowed the appeals and insofar as is relevant to this application reduced the starting point for sentence for the obtaining and using the false credit card charges from 4 years to 3½ years — which resulted in a sentence after allowing for the pleas of guilty of guilty of 2 years 4 months.  They also reduced the starting points for the possession of forged passports from 4 years to 18 months and as did the judge in the instant case ordered that that 4 months of that sentence be served consecutive to the other terms — resulting in a sentence of  2 years 8 months’ imprisonment.

19.In Kita Yasushi the Court of Appeal accepted that there was a :

“sufficient international element to have provided justification on the part of the judge for regarding this as an aggravating factor.”

The Court of Appeal accepted in the circumstances of that case that an overall starting point of 4 years’ imprisonment properly reflected the criminality involved for all offences.  The judge’s mistake had been not to impose appropriate sentences for each offence.

20.We were invited in the light of the approach taken in Kita Yasushi to say that 3½ years for the obtaining charge is the appropriate starting point in the instant case.  We agreed with that submission.  The enhancement of the starting point for sentence from 3 years to 4 years on the basis of the international dimension resulted in a starting point which was too high.

21.The proper starting point for sentence for the 1^st charge in all of the circumstances of this case was 3½ years after trial. Allowing a full discount to allow for the applicant’s plea of guilty a sentence of 2 years and 4 months’ imprisonment was appropriate. 

22.The appeal was allowed to that extent and the sentence on the 1^st charge reduced from 2 years 8 months to 2 years 4 months.  We made no alteration to the order that 4 months of the sentence on the 2^nd charge be consecutive to the sentence on the 1^st charge.

Mr Andrew Cheng, PP, of the Department of Justice, for HKSAR

Mr Giles Surman, instructed by Messrs Peter C. Pan & Co.,assigned by the Director of Legal Aid, for the Applicant