HKSAR v. Shek Kin Chung

CACC000120/2001

CACC 120/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 120 OF 2001

(ON APPEAL FROM DCCC NO. 1074 OF 2000)

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Coram: Hon Stuart-Moore VP, and Stock, JA in Court

Date of Hearing: 18 October 2001

Date of Judgment: 18 October 2001

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1This is an application for leave to appeal against sentence.

2The applicant was charged in the District Court with three offences, the first two of possession of false instruments, namely, credit cards, with intent that they be used to induce somebody to use them as genuine, contrary to section s75(1) of the Crimes Ordinance, Cap. 200; and the third of possession of identity cards relating to other persons. The applicant pleaded guilty to the first charge, and the other two were ordered by HH Judge Line to be left on the file. So we are concerned, as was the judge, with the first charge only. That alleged the applicant was in possession of nine such credit cards, namely, eight American Express cards, and one Hang Seng Bank visa card, with the requisite fraudulent intent.

3The facts pertinent to this charge, as they were put before the District Court, were somewhat sparse. They were that, at about 4.50 a.m. on 3 October 2000, the applicant was a passenger in a vehicle driven by a female in Kimberley Road, Tsim Sha Tsui and as it approached a police roadblock, it reversed, causing officers to give chase. The vehicle was then seen parked in Carnarvon Road, and the applicant and the driver were searched. In a waist bag carried by the applicant were these nine credit cards wrapped in a piece of paper, and the paper had numbers on it. The nine cards, which were forgeries, carried between them four different names as cardholder; in other words, there were different numbered cards but, in several instances, carrying the same name. We are told nothing about what then transpired; what the applicant said either then or when he was interviewed, if indeed he was interviewed; what was written on the piece of paper; or what else was found on him. How a court is meant in such circumstances to carry out a fully informed sentencing exercise one knows not, but it may be that this was all part and parcel of some agreement as to plea which resulted in the prosecution not proceeding with the other charges, a fact which caused the judge evident concern in this case, though he made it abundantly clear that he was restricting sentence to the proved charge.

4The judge took a starting point of five years' imprisonment and, giving full reduction for the applicant's plea of guilty, he sentenced him, on 13 March 2001, to a term of three years and four months' imprisonment, and ordered that term to run consecutively to a term of 12 months' imprisonment which had been imposed on this applicant in November 2000 for an offence of obtaining property by deception (with the use of a forged bank card), and for possession of an identity card relating to another person. The judge took the view, quite rightly in our opinion, that the fact that the offence with which we are presently concerned was committed whilst the applicant was on bail for the commission of an offence of exactly the same type was a serious aggravating factor.

5The applicant is aged 30 years, and he is not a person of previous good character, quite apart from the earlier offence to which we have just referred. He has a string of convictions going back to 1987: offences including theft, burglary, taking conveyances without authority, robbery, and possession of drugs.

6Mr Chan, who appears today for the applicant, complains about the starting point of five years' imprisonment. He has taken us to a few cases, in particular the decision in R v Chan Sui-to [1996] 2 HKLRD 128. We have that case in mind, as well as the various decisions to which it refers. Mr Chan also referred particularly to Attorney General v Chan Piu-sang [1994] 1 HKCLR 211. In that case, the first respondent in an Attorney General's Review, had pleaded guilty to two charges: one of possession of forged cards with intent to defraud; and the other possessing five such cards knowing them to be false, also with requisite fraudulent intent. The second offence was committed whilst on bail for the first, and involved posting the cards to an international address. Mr Chan relies on the fact that the Court said that the appropriate sentence for the second offence after trial would have been one of four years' imprisonment. So Mr Chan says that the present case also warranted a starting point of four years' imprisonment. We note that in Chan Piu-sang, the Court said that the appropriate totality for both offences was four years' imprisonment, and that was after plea. Furthermore, as to the first charge in that case, the maximum sentence permissible at the time for an offence under the relevant section was one of seven years' imprisonment, whereas under the section with which this applicant is charged in relation to all the cards it is 14 years' imprisonment. Furthermore, whilst one looks for consistency in sentencing, to point to a single case in 1994 to try to use it as a strait jacket is to view sentencing exercises in too restrictive a way.

7This applicant is a man of thoroughly disreputable character, and cannot begin to pray in aid good character. Here he was, found in possession of no fewer than nine forged cards which, as his plea evidences, he intended should be used to deceive. We cannot say how extensive would have been the loss occasioned, but as has been emphasized in HKSAR v Ng Swee Thiam [2000] 1 HKLRD 772 it is the potential for loss which is important. In addition and it is, as we say an important additional factor, he committed this offence whilst on bail for a like offence. In such circumstances, we cannot see how it can properly be said that the sentence imposed for the charge to which he pleaded guilty was manifestly excessive.

8It is then said that the judge was wrong in ordering the sentence to run wholly consecutively to the sentence imposed in November 2000. To do so, says Mr Chan, results in a totality which is too great. We do not agree.

9The application for leave to appeal against sentence is dismissed.

Representation:

Mr Kenneth G M Chan assigned by the Director of Legal Aid for the Applicant

Mr Stanley Chan of the Department of Justice for the Respondent