HKSAR v. Li Tsz Chung

CACC 312/2011 & CACC 314/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NOS. 312 OF 2011 and 314 OF 2011

(ON APPEAL FROM DCCC NOS. 611/2011 and 620/2011)

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BETWEEN

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Before : Hon Stock VP and Lunn JA in Court

Date of Hearing : 23 December 2011

Date of Judgment : 23 December 2011

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J U D G M E N T

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

1.The applicant seeks leave to appeal against sentence in this consolidated appeal from sentences imposed upon him on 21 July 2011 by Deputy Judge Surman in the District Court, following his pleas of guilty on the previous day to a total of four charges in DCCC No. 611/2011 and one charge in DCCC No. 620/2011.

THE CHARGES

2.In DCCC No. 611/2011, the applicant was charged with two offences of fraud (Charges 1 and 4) in respect of two separate victims, contrary to section 16A of the Theft Ordinance, Cap. 210 and two charges of using a false instrument (Charges 2 and 3), contrary to section 73 of the Crimes Ordinance, Cap. 200.

3.In DCCC No. 620/2011, the applicant was charged with a single charge of making counterfeit currency notes intending that it be passed or tendered as genuine, namely two HK$500 banknotes, contrary to section 98(1) of the Crimes Ordinance, Cap. 200.

THE FACTS

DCCC No. 611/2011

4.In October 2009, Ms Sheryl Lee Suet Yee, the victim of Charge 1, was an attendee of a training course organised by the YMCA in Tin Chak Estate in Tin Shui Wai of which the applicant was the instructor.  She and the applicant became friends.  In November 2009, Ms Lee accepted the applicant’s offer to assist her to find a place for her daughter, with whom she was having difficulties, at a boarding school.  In mid-January 2010, the applicant presented Ms Lee with a letter, which purported to notify her that her daughter had been accepted at the ‘Hong Kong Stanley Sea School’.  On being told by the applicant that fees at the School of $25,000 were required in advance of admission, Ms Lee authorised the applicant to withdraw $25,000 from her Bank of China Bank account by the use of an ATM card.  In late January 2010 the applicant made a request for a further payment of admission fees of $17,700.  On and between 31 January and 11 March 2010 by multiple transfers between their bank accounts Ms Lee transferred that sum of money to various bank accounts stipulated by the Applicant.

5.In August 2010, not having received any communications from the school, Ms Lee realised that she had been deceived by the applicant.  There was no such school.  The Hong Kong Sea School had not received any application from or made any offer of a place to Ms Lee’s daughter.

Charges 2 and 3

6.In the course of their friendship, Ms Lee told the applicant that although she was a recipient of Comprehensive Social Security Assistance (CSSA) she had savings of $190,000, which were kept by her sister.  In May 2010 (Charge 2), she received a letter which purported falsely to come from the International Social Service Hong Kong Branch in which she was asked to provide information about her receipt of CSSA.

7.On 23 June 2010 (Charge 3), she received a letter purporting falsely to have come from ‘Financial Investigation Unit 3’ of the Social Welfare Department informing her that an investigation had begun into her alleged failure to disclose requisite financial information to the Department in applying for CSSA in the period 2002 to 2007.  On the same day Ms Lee received SMS messages from the applicant, the upshot of which was his request for payment of $60,000 to him to help him ‘settle’ the matter.  Ms Lee reported the matter to the police.

8.There was no Financial Investigation Unit in the Social Welfare Department and the details provided in the letter received by Ms Lee on 23 June 2010 were all fictitious.

Charge 4

9.In August 2010, whilst a patient in the Tuen Mun Hospital, Mr Chan Ping Chuen met the applicant, who claimed to be a social worker.  In late September 2010 the applicant informed him that he could claim an allowance from the Government in respect of and arrange for a ‘body check’ for Mr Chan.  Having agreed on three separate dates in November 2010 to pay various sums of money for different body checks, first at Pok Oi Hospital and then at Queen Mary Hospital, Mr Chan transferred a total of $6,425 from his bank account into two accounts stipulated by the applicant.  In response to enquiries from Mr Chan as to the provision of the promised procedures the applicant said that problems had been encountered and undertook to repay the monies he had received.  Needless to say, nothing was repaid.

10.On 3 March 2011, following his arrest, the applicant admitted his role in the offences.

DCCC No. 620/2011

11.On 18 and 24 February 2011, the applicant paid for meals that were delivered to him at his request to the management committee office of Heng Cheuk House, Tin Heng Estate, Tin Shui Wai with what purported to be $500 banknotes.  In return, the applicant received change.  The bank notes were identified as being counterfeit by the cashiers of the respective restaurants and a report was made to the police.  Following his arrest on 1 March 2011 the applicant admitted that he had made the counterfeit banknotes by photocopying them on a colour printer.

SENTENCE

12.The judge sentenced the applicant to a total of 58 months’ imprisonment.  In respect of DCCC No. 611/2010, he was imposed the following sentences:

Charge 1: 32 months’ imprisonment;

Charge 2: 22 months’ imprisonment;

Charge 3: 22 months’ imprisonment; and

Charge 4: 26 months’ imprisonment.

The judge ordered part of each of the sentences imposed in respect of Charges 2 to 4 to be served consecutively to sentences imposed in respect of other charges: 3 months of the sentence of imprisonment imposed in respect of Charge 2 to be served consecutively to that imposed in respect of Charge 1; three months of the sentence of imprisonment imposed in respect of Charge 3 to be served consecutively to the sentence imposed in respect of Charges 1 and 2; and 12 months of the sentence of imprisonment imposed in respect of Charge 4 to be served consecutively to those imposed in respect of Charges 1, 2 and 3.  The total sentence of imprisonment imposed was 50 months.

13.In respect of the charge in DCCC No. 620/2011 the judge imposed a sentence of 22 months’ imprisonment, eight months’ imprisonment of which he ordered to be served consecutively to the sentences imposed in respect DCCC No. 611/2011.  Accordingly, the total sentence imposed on the applicant was 58 months’ imprisonment.

REASONS FOR SENTENCE

14.In his reasons for sentence the judge noted that, apart from his pleas of guilty, there was little by way of mitigation.  He described the applicant’s criminal record as “truly appalling”, noting that he had a total of 28 convictions imposed on 15 separate occasions.  Of the fact that most of the convictions were for offences of dishonesty, the judge noted that 10 were for offences of theft, 10 for obtaining by deception and one for attempting to obtain by deception.  Furthermore, he observed that, given that the applicant had been released from his last period of incarceration on 10 October 2008, the applicant had embarked upon the commission of the offences for which he was being sentenced a little over a year later.  The judge concluded that the sentences of imprisonment to which the applicant had been subjected had “no deterrent effect” on the applicant.  He said that he took into account the applicant’s record in determining sentence.

15.The judge described the frauds committed on Ms Lee and Mr Chan as “despicable”. Of that perpetrated on Ms Lee, the judge said that the applicant had preyed on a mother concerned to do the best that she could for her daughter. In respect of Mr Chan, the judge noted that he was a patient in hospital, in delicate health.  Of the applicant’s conduct towards those two victims the judge said that it undermined the efforts of those who volunteered to assist others making the recipients of such offers of help suspicious of the motives of such volunteers.

16.The judge found that all the offences indicated a degree of planning and sophistication.  Of the making of counterfeit currency notes charge, the judge noted that one of the $500 banknotes was of “poor or very poor” quality but the other of a considerably better quality.

Starting point

17.The judge identified the starting point taken for sentence in respect of each of the charges in the two cases to which he added a stipulated enhancement of sentence.

Charge 1: 3½years’ imprisonment, enhanced by six months’ imprisonment, to a total of four years’ imprisonment;

Charges 2 and 3: 2½years’ imprisonment, enhanced by three months’ imprisonment, to a total of two years and nine months’ imprisonment respectively;

Charge 4: three years’ imprisonment, enhanced by three months’ imprisonment, to a total of three years and three months’ imprisonment.

DCCC No. 620/2011

Charge 1: 2½years’ imprisonment, enhanced by three months’ imprisonment, to a total of two years and nine months’ imprisonment.

Discount

18.The judge discounted each of the stipulated enhanced starting points taken for sentence by one third to reflect the applicant’s pleas of guilty.

Totality

19.In addressing the issue of the appropriate totality of sentence, the judge acknowledged that he was aware that he had enhanced sentences and that “double counting” of the applicant’s criminal record was to be avoided.  Having stipulated each of the periods of imprisonment ordered to be served consecutively to other sentences of imprisonment, the judge noted that the resulting total of 4 years and 10 months’ imprisonment was imposed in respect of criminal activity extending over a period from 1 January 2010 to 18 February 2011.

GROUNDS OF APPEAL AGAINST SENTENCE

20.On behalf of the applicant, Mr Richard Wong, in his lengthy written submissions which he supported orally contended that the judge erred in stipulating the starting points taken for sentence in every one of the charges.  No issue was taken with the enhancement of sentence that the judge stipulated that he took in respect of each of those charges.

Charges 1 and 4

21.Of Charges 1 and 4 (fraud) of DCCC No. 611/2010, it was submitted that the judge had adopted the sentencing tariff customarily used in credit card frauds.  On that premise, it was submitted that the factors identified in various judgments of this court, as being relevant to sentence in credit card frauds, were relevant to the sentences imposed by the judge.  [See R v Chan Sui To CACC 115/1996-unreported, 22 August 1996; HKSAR v Luo Xihung 329/2010-unreported, 9 June 2011.]  In particular, it was contended that consideration ought to be given to the size of the operation, namely that it did not involve large sums of money or multiple culprits or the use of forged credit cards.  Further, that the fraud was simple and without an international dimension.

22.Then, it was submitted that the conduct was to be viewed as more “akin to that of obtaining property by deception rather than a credit card fraud”.  On that basis, it was submitted that the judgments of this court in HKSAR v Liu Ying Fai CACC 151/1998-unreported, 23 April 1999 and HKSAR v Chan Ho Yin CACC 207/2000-unreported, September 2000 were relevant.

Charges 2 and 3

23.Again, it was submitted that the judge had adopted the sentencing tariff customarily used in credit card frauds in sentencing the applicant in respect of the two charges of using a false instrument.  On that premise, it was submitted that judgments of this court in respect of cases involving the fraudulent use of credit cards was relevant.  [See HKSAR v Tu I Lang CACC 464/2006-unreported, 18 May 2007.]

24.Then, it was submitted that the misconduct was more appropriately viewed as similar to the obtaining of property by deception or the use of false cheques, charged as offences contrary to section 73 of the Crimes Ordinance, Cap. 200, and that the judgments of this court in respect of such cases was relevant.  [See Liu Yin Fai and HKSAR v Mak Ka Chiu CACC 783/1997-unreported, 8 July 1998.]

DCCC No. 620/2011

25.It was submitted that in imposing the sentence of imprisonment in respect of the making of counterfeit currency notes the judge failed to give sufficient consideration to the factors identified as relevant in the judgments of this court, namely: the size of the operation; the quantity and value of the counterfeit notes; the degree of sophistication of the counterfeit copies; the nature and efficacy of the paraphernalia and the length of time over which the offence had been committed.  [See HKSAR v Wong Hoi Yat [2006] 3 HKLRD 150; R v Yip Moon Kwan CACC 210/1994-unreported, 10 March 1995; HKSAR v Au Wai Yip CACC 166/2002-unreported, 23 August 2002.]

Totality

26.It was submitted that in imposing total sentences of 4 years and 10 months’ imprisonment, although the judge had adverted specifically to the principle of the totality of sentence, he had failed to give effect to that principle.  In particular, the judge had not given any specific indication as to how the application of the principle of totality had operated to reduce the overall length of sentence that otherwise he would have considered appropriate.

A CONSIDERATION OF THE SUBMISSIONS

27.There is no support whatsoever from the material available in the Appeal Bundle to support the sweeping assertion that the judge had recourse to considerations of the sentence appropriate for credit card frauds in reaching his determinations as to the appropriate sentences imposed in respect of any of the charges in DCCC No. 611/2010.  Indeed, Mr Richard Wong is unable to point to anything that supports that contention.  This argument is absolutely bereft of merit.

Ms Lee

28.The applicant’s misconduct in respect of Ms Lee was truly despicable.  He betrayed the trust reposed in him, both as an instructor and then as a friend.  He did so over a sustained period of time, preying on her vulnerability as a poor person, trying to do the best she could for her daughter.  In order to advance the fraud alleged in Charge 1, the applicant forged a letter falsely purporting to come from a boarding school offering a place to her daughter for study.  In doing so, no doubt he raised her hopes that the difficulties experienced by her daughter would be overcome.  That hope was false.  By the use of the forged letter he was able to persuade Ms Lee to part with $25,000.  Not content with that, he pursued her, lying to her that further monies were required to secure the admission of her daughter to that school.  He remained unmoved and heartless in the face of her obvious difficulties in raising the extra monies, protesting as she did that she needed time to raise the money, the truth of which was evidenced by the fact that she made the additional payments of $17,700 by multiple small transfers of money over a period of about six weeks.

29.Not content with having defrauded Ms Lee of $42,700 in the period November 2009 to March 2010, in May and June 2010 the applicant embarked upon another scheme to obtain money from her dishonestly.  He did so armed with the information that he had obtained from her, no doubt in confidence, that although she was in receipt of CSSA payments she had over $100,000 that was kept on her behalf by her sister.  In order to advance his scheme he forged the two letters the subject of Charges 2 and 3.  Clearly, he intended to frighten Ms Lee by the false picture that he arranged which, as he clearly intended, led her to believe that she was the subject of an investigation about the circumstances of her receipt of CSSA payments and no doubt gave rise to concerns of possible criminal charges.  Then, falsely presenting himself as a friend he sought to obtain $60,000 on the basis that he would seek to ‘settle’ the problem.  The whole scheme was appallingly mean-spirited and very nasty.  Ms Lee has received no repayment or offer of repayment of the monies that she lost, which monies in her circumstances she could ill afford to lose.

30.In the circumstances, the judge was perfectly entitled to describe the offences as involving a degree of planning and sophistication.

Mr Chan

31.Having failed in his attempts to obtain $60,000 from Ms Lee, the applicant turned his attention to Mr Chan.  Once again, he chose to prey on a vulnerable person.  This time, he preyed on a patient in hospital.  Again, he inveigled himself into the trust of his prospective victim by falsely pretending to be a social worker.  The help he offered on this occasion was to arrange for a body check procedure, falsely asserting that he would obtain a Government allowance to be paid to Mr Chan.  Again, the applicant was persistent in pursuing his victim, making a number of requests for payment and eventually obtaining $6,425.

32.As this court has said on repeated occasions in the past, in many if not most cases the unique factual matrix of the commission of an offence or offences is critical in determining the appropriate sentence.  That observation is well-illustrated by the circumstances of the charges arising from the applicant’s conduct in respect of Ms Lee and Mr Chan.  In cases arising from different factual circumstances, it is appropriate to give different weight to different factors.  In the case of Ms Lee and Mr Chan the particularly aggravating features of the commission of the offences was the fact that the applicant was preying on vulnerable people and that he did so over a period of time pressing home his various demands.  He abused and took advantage of their trust for his personal advantage.  Whilst the amount of money obtained from Ms Lee is one factor, also of relevance is its significance to her, of which fact the applicant was well aware.

Conclusion

33.In the result, we are satisfied that the starting points identified by the judge in respect of Charges 1 to 4 for sentence were entirely appropriate.  Indeed, in all circumstances the sentence imposed in respect of Charge 3 might have been greater.

DCCC No. 620/2011-making counterfeit currency

34.At the outset of the consideration of the appropriateness of the sentence imposed in respect of the single charge brought in DCCC No. 620/2010, namely the making of a counterfeit currency note intending that it be passed as genuine, it is to be noted that the maximum penalty on conviction on indictment is imprisonment for 14 years.  The offence is extremely serious (see Wong Hoi Yat).  The integrity of the currency circulated in any society is important.  In this case, not only did the applicant make the counterfeit currency notes but also he used them and did so successfully, to the extent that they were accepted as payment for the meals which he obtained and, no doubt importantly, he was given genuine currency by way of change.

35.It is readily apparent from the description that he gave in his reasons for sentence, to which reference has been made earlier, that the judge was very much alive to the issue of the quality of the counterfeit notes.  Also, it is to be noted of the steps taken by the applicant to tender the two counterfeit $500 banknotes, as the judge observed, that he had chosen to place his orders with two different restaurants on different days.  Of that, he said that it demonstrated forethought or the application of intelligence.  He was entitled to make those findings.  On the other hand, it is clear that the level of sophistication involved in the making counterfeit banknotes was relatively low, involving no more than the use of a colour printer.

36.The authorities to which Mr Richard Wong referred this court to in respect of the making of counterfeit currency notes are of limited use in the circumstances of this case, which clearly falls at the low end of culpability.  Of more relevance is the judgment of this court in HKSAR v Leung Wai Han, (CACC102/2002-unreported, 3 September 2002), to which counsel for the Respondent, Ms Vinci Lam, drew our attention.  In that case the applicant had been convicted on her pleas of guilty, inter alia, to two charges of custody or control of counterfeit currency notes.  One of those charges alleged that, contrary to section 100(1) of the Crimes Ordinance, she was so possessed of eleven $100 notes and one $20 note that she knew or believed that to be counterfeit and intended them to be passed as genuine.  The maximum penalty for the offence is also 14 years’ imprisonment.  The other charge, contrary to section 100(2) of that Ordinance, alleged that she was in custody or control of twenty $100 banknotes knowing or believing them to be a counterfeit of a currency note.  The maximum penalty for that offence is three years’ imprisonment.  This court did not interfere with the starting point taken for sentence by the judge of 2½years’ imprisonment in respect of both charges.

37.In the result, we are satisfied that the judge was entitled to take 2½ years’ imprisonment as the starting point for sentence in respect of this offence.

The applicant’s criminal record

38.Whilst no issue was taken with the stipulated enhancement of sentence taken by the judge in respect of each of the charges, having regard to the criminal record of the applicant, it is nevertheless relevant to consider that record.  The applicant was born in 1979.  His first offence of dishonestly was burglary, for which he was sentenced in 1996 to Drug Addiction Treatment Centre.  Five offences of theft followed in the period 1998 to 2000, for which he was ordered to serve further periods in a Drug Addiction Treatment Centre.  In 2002, he was sentenced to a total of 6 months’ imprisonment for two offences of theft.  In 2005, he was sentenced to a total of nine months’ imprisonment for two further offences of theft.  In 2005, he was sentenced to 6 months’ imprisonment for yet another offence of theft.  In 2006, he was sentenced to 12 months’ imprisonment for an offence of obtaining property by deception.  Then, in 2008, he was sentenced to a total of 18 months’ imprisonment for nine offences of obtaining property by deception and one of attempting to do so.

39.Clearly, the judge was entitled, as he did, to describe that criminal record as “truly appalling” and to determine that the imposition of a custodial sentence or its prospect had no deterrent effect on the applicant.  On the other hand, clearly the public were entitled to be protected from the applicant.

Totality

40.Mr Wong is correct in saying that, although the judge did address the issue of the appropriate totality of sentence to be imposed upon the applicant, he did not articulate his reasons for ordering that consecutive sentences be imposed or for their length.  It would have been better if he had done so.

41.Amongst the factors relevant to a consideration of the appropriate totality of sentence to be imposed upon the applicant for the five offences to which he pleaded guilty, is not only the different nature of the offences committed by the applicant but also the period of time over which those offences were committed and the number of different victims.  In all, there were four victims of his criminal misconduct.  As the judge observed, that conduct occurred over a period of over 13 months.  No repayment whatsoever had been made to the monies lost by those victims.  His criminal record evidenced a geometric progression in the commission of criminal offences.

42.Clearly, each of the offences of which the applicant was convicted was separate and different.  Although Ms Lee was the victim of three of the charges, Charges 2 and 3 (the use of two different false instruments) were offences committed in implementation of a separate and different fraudulent scheme committed at a later time period than the fraud the subject of Charge 1.  Similarly, Charge 4 (fraud) was in respect of a different victim at a different time.  Finally, the making of counterfeit currency notes and their use to two different victims also occurred at a different period of time.  In those circumstances, all of the sentences imposed on the applicant for those offences were sentences or part of them that might properly be made consecutive to each other.

43.The total sentence of imprisonment imposed on the applicant was 8½ years.  Clearly, “stepping back” and taking a view of the totality of sentence, as the judge stated that he did, that total sentence was excessive.  We are satisfied that the judge’s orders in respect of the consecutive sentences were correct, both as to the need for such sentences and as to their length.

CONCLUSION

44.Whilst the imposition of a total sentence of imprisonment of 4 years and 10 months upon the applicant, for the five offences to which he had pleaded guilty, is a very substantial total sentence we are satisfied that in the circumstances it was entirely merited.  Accordingly, we refuse the applications for leave to appeal against sentence.

Ms. Vinci LAM, SPP, of the Department of Justice, for the Respondent

Mr. Richard WONG, instructed by Ong & Chung, assigned by D.L.A., for the Applicant