HKSAR v. Ho Chi Shing

CACC 11/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 11 OF 2011

(ON APPEAL FROM DCCC NO. 767 OF 2010)

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BETWEEN

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Before: Hon Stock V-P, Barnes and Wright JJ in Court

Date of Hearing: 21 September 2011

Date of Judgment: 21 September 2011

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J U D G M E N T

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Hon Wright J (giving the Judgment of the Court):

1.The applicant, the 1^st accused before Deputy Judge Dufton, was convicted of eight charges of obtaining property by deception, those being Charges 3, 4, 6, 7, 11, 12, 14 and 15 on the charge sheet and two charges of attempting to obtain property by deception, being Charges 2 and 10. Before the judge, he was represented by Mr. Oliver Davies of counsel. In respect of each of the charges he entered a plea of guilty. He admitted a detailed summary of facts which, in each instance, established the essential elements of each offence.

2.He initially sought leave to appeal conviction and sentence.  By a letter dated 9 September 2011, he informed the court that he intended to abandon his application insofar as conviction was concerned and proceed solely in respect of his application against sentence. Before us he indicated that he no longer wished to abandon the application relating to conviction but wished to proceed with it in person.  In respect of the application against sentence, he is represented by Mr. Jackson Poon today. 

3.The applicant submitted a letter dated 4 September 2011 which contained the two grounds of appeal against conviction and such supporting submissions as he wished to make in respect of those two grounds.  They were, first, that at the time of sentencing him, the judge described his participation in the offences as being “...part of a large syndicate which was no different to a forged credit card syndicate”.  The applicant makes the point that as only two persons were involved in the offences, this could not be a syndicate.  We are able to dispose of that ground of appeal immediately as it relates, if to anything, then to sentence rather than to conviction.

4.The second ground of appeal which he seeks to advance relates to the fact that shortly after his arrest, the police visited him in custody and related to him the commission of earlier offences.  He denied having been involved in those offences but the police indicated to him that, if he acknowledged participating in them, they would ensure that he received a one-third discount on any sentence imposed upon him.  They then also asked him to sign certain documentation in blank which he asserts were two forms apparently destined to become witness statements.  He offered to provide the police - and subsequently did provide them - with information relating to the criminal activities of his then co-accused.  He suggests in the letter to us that the police failed to follow up on the information which he provided which included, he says, a video recording of the activities of the 2^nd accused.

5.In the passage of time, the police apparently having failed to act on the information he had provided, he made a complaint to the Independent Complaints authority as well as to the Ombudsman.  However, when the applicant appeared in court on 20 December 2010 and entered his pleas of guilty to the offences, he was prevailed upon by those then representing him to withdraw the complaints, he says. 

6.It seems to us that this second ground may also be dealt with shortly in that no matter what the situation may have been prior to 20 December 2010, on that date the Accused was represented by counsel instructed by solicitors and entered unequivocal pleas to each of the counts to which he pleaded guilty.  He then agreed a detailed summary of facts which set out each of the offences, the circumstances surrounding it, the nature of his participation in those offences, the type of goods obtained and the value of them.  Those were unequivocal pleas which, combined with his admission of the summary of facts, led to his conviction.  In the circumstances there is no merit in the second ground of appeal against conviction.  Accordingly the application for leave to appeal conviction is dismissed.

7.For the sake of completion we should note that the prosecution tendered to us a Notice of Motion to which was attached a variety of affirmations dealing with the matters raised by the applicant in his written submissions with a view to obtaining their admission under s. 83V(1)(a) of the Criminal Procedure Ordinance, Cap. 221.  Given the nature of the applicant’s grounds of appeal, we did not regard it as necessary to consider that application or to admit the evidence before us. 

8.We turn now to the question of the appeal against sentence.  The judge had expressed in full reasons how he arrived at a total starting point of 9 years imprisonment before allowing any discount for mitigating features.  The final sentences were as follows after allowing a one-third discount for the pleas of guilty.  On each of Charges 10, 11, 12, 14 and 15, - 3 years imprisonment on each, all to be served concurrently.  On Charge 2 - 2 years imprisonment of which 4 months is to be served consecutively to the sentences on Charges 10 to 12, 14 and 15.  On Charge 3 - 3 years and 8 months imprisonment of which 1 year is to be served consecutively to the other sentences.  On Charge 4 - 2 years imprisonment of which 1 year is to be served consecutively to the other sentences.  On Charges 6 and 7 - 2 years and 8 months imprisonment on each to be served concurrently with one another, but 8 months of which is to be served consecutively to the other sentences.  

9.The judge recorded that he was satisfied that the total sentence of 6 years imprisonment, after the one-third discount for the pleas, properly reflected the applicant’s criminality on all charges and also afforded him a meaningful discount from the maximum sentencing jurisdiction of the court. 

10.Two grounds of appeal were advanced on the applicant’s behalf: first, that applying the principle of totality, the sentence is manifestly excessive; second, that an inadequate discount was afforded from the maximum sentencing jurisdiction of the District Court. 

11.Each of the offences involved the use of a credit card.  In every instance a wallet had been stolen from a diner in a restaurant at lunch time and credit card/s from the stolen wallet used, or attempted to be used, within minutes of the theft to make substantial purchases of luxury goods.  These offences occurred in December 2007, February 2009, November 2009, December 2009 and April 2010.  It is self-evident that this was an audacious, persistent, well organised and carefully planned operation in which the applicant, and others involved with him in this scheme, participated until his apprehension.

12.The value of the property which the applicant sought to obtain in respect of Charge 2 was $41,350.80 and in respect of Charge 10, $108,730.00. The aggregate value of the properties obtained in respect of each of the other charges was $628,293.00. 

13.There is no evidence that it was the applicant who actually stole the wallets from the diners’ respective jackets.  Somebody did.  The credit cards were then made available to the applicant, and another, to use before the theft was discovered.  It is plain that, in this sense, time was of the essence. We note that Charges 10 to 12, 14 and 15 all occurred on the same day and involved the use of credit cards found in wallets stolen from two separate diners in two different restaurants at lunch time that day.  Each of those wallets was found on the person of the applicant when he was intercepted that day.

14.It would be naive to suggest that the applicant was not intimately involved with the theft of the wallets even if he was not the actual thief.  Sheer commonsense dictates that this was a multi-handed operation.  The judge was correct in regarding it as a syndicated operation. 

15.This court, differently constituted, has recognised that “[a]llowing for the different facts and varying degrees of culpability, it is impossible to formulate a set of principles for sentencing from [other] decisions [in credit card fraud cases]” -  see HKSAR v Chan Su- to and Anor. [1996] 2 HKCLR 128 at 134. The court nonetheless provided a broad criterion suggesting that an accused who played an active but not necessarily key role in a medium size operation involving between $50,000.00 and $150,000.00 with no elaborate planning and equipment should receive a sentence of 5 to 6 years after trial, but emphasised that the sum of money was only one, and not the most significant, factor.  It is impossible to see in this case - where the value of the property obtained was over $600,000.00 for a series of offences mostly on different occasions; in which the applicant’s role was fundamental to the success of the plan for it was he who sought to realise the potential of the stolen credit cards, and where the degree of planning involved was substantial -  how it seriously can be suggested that either the starting point or resulting overall sentence was at all excessive, let alone manifestly so. 

16.The judge’s calculation of the appropriate starting point after trial was entirely appropriate in the circumstances of these offences and consistent with current sentencing practice.  We agree with the view expressed by the judge to the effect that the applicant was fortunate that the prosecution had been brought in the District Court and not in the High Court. 

17.As to the second ground of appeal against sentence, all we need to say is that the authorities are clear.  A meaningful discount must be given in recognition of the plea but what is meaningful in any particular circumstances will be fact sensitive.   The judge recognised that and plainly gave the matter consideration.  His conclusion was correct. 

18.This application in respect of the sentence similarly is devoid of any merit and is dismissed.

Hon Stock VP:

19.Having concluded that the applications for leave to appeal against conviction and sentence were each without a scintilla of merit, we took the view that this was precisely the type of case to which the power conferred by s.83W of the Criminal Procedure Ordinance was directed.  Accordingly, we invited and have received submissions from counsel and from the applicant in person as to why we should not give effect to the power conferred by that section.

20.We direct that two months of the time spent in custody by the applicant pending the determination of this appeal shall not be reckoned as part of the term of any sentence to which he is for the time being subject.

Mr. Francis Lo, SADPP of Department of Justice, for the Respondent

Mr. Jackson Poon, instructed by Messrs Or & Partners (DLA), for the applicant