HKSAR v. Ata Asaf

CACC 445/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 445 OF 2012

(ON APPEAL FROM DCCC 648 OF 2012)

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BETWEEN

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

1.The appellant was convicted after trial on 24 October 2012 by Deputy District Court Judge Adrianna Tse of the offence of having custody or control of false instruments on 27 April 2012, namely 4 credit cards, without lawful authority or excuse, which he knew or believed to be false, contrary to section 75(2) of the Crimes Ordinance, Cap. 200. The judge reached that verdict pursuant to section 51(2) of the Criminal Procedure Ordinance, Cap. 221, namely as an offence the ingredients of which she found proved were encompassed in the ingredients of the charge for which he stood trial. The appellant was charged with and stood trial for an offence contrary to section 75(1) of the Ordinance, namely that he had custody or control of those credit cards with that knowledge or belief and with the intention that he or another would use them to induce somebody to accept them as genuine and by reason of so accepting them do or not do some act to his or any other person’s prejudice. The judge stated in respect of the charge as laid, that there was insufficient evidence for her to be sure that the appellant intended, “to use those credit cards”. In consequence of that conviction, the judge sentenced the appellant to 2 years’ imprisonment.

2.On 14 March 2013 the appellant was granted leave to appeal against sentence by Yeung VP.

REASONS FOR SENTENCE

The Facts

3.In her Reasons for Sentence, the judge said that the facts of the case were described in her Reasons for Verdict.  In the latter, the judge noted that most of the prosecution case had not been disputed.  It was an admitted fact that the four credit cards were forged.  The appellant was intercepted by police officers at about 17:45 on 27 April 2012, after he entered a shop in Cameron Road.  After he had been searched he was arrested, apparently for possession of what was suspected to be dangerous drugs found in a glasses case in his front trouser pocket.  There was no dispute that four credit cards, in Chinese names of three different people, were found on the appellant.  There was an issue, of no consequence in this appeal, as to the place at which that search took place and where on the appellant the discovery was made.  Three of the four credit cards were Cathay Pacific American Express credit cards which bore account numbers that were genuine account numbers, but not for Cathay Pacific American Express credit cards.  Two of those three cards had been used to conduct fraudulent transactions in Hong Kong in October 2011, although no information was provided as to the extent of any loss.  The third credit card had never been used.

4.The judge rejected the appellant’s account, in his out-of-court statements and in his testimony at trial, and that of his girlfriend, that he had found the four credit cards together on the pavement in the afternoon of 27 April 2012.  Rather, she found that he had been in possession of them “all along” and that “he knew that they were forged”.

Sentence

5.The judge noted that the appellant had seven previous convictions, three of which were for dishonesty.  That was a reference to three convictions for theft, two in 2009 and the other in 2010.  For the second conviction of theft in 2009, he was sentenced to 2 months’ imprisonment suspended for 12 months.  For the 2010 offence of theft, he was sentenced to 4 weeks’ imprisonment.  The commission of that offence constituted a breach of his suspended sentence, in consequence of which the suspended sentence was activated and 2 weeks of the 4-week sentence ordered to be served consecutively to that sentence.

6.In determining the appropriate sentence, the judge noted that the offence involved the possession of four forged credit cards and that there was an ‘international dimension’ to the commission of the offence in that, although the credit cards were forged credit cards, they were related to genuine accounts in the United States of America.

7.In the result, the judge sentenced the appellant to 2 years’ imprisonment, observing that he showed no remorse.

GROUNDS OF APPEAL AGAINST SENTENCE

8.Today, the appellant complained simply that his sentence was too high.  He said that he was in possession only of the four credit cards.  He did not intend to use them.

Discussion

9.It is to be noted at the outset that the maximum sentence of imprisonment for an offence contrary to section 75(2) of the Crimes Ordinance is 3 years’ imprisonment, whereas the maximum sentence of imprisonment for an offence contrary to section 75(1) of the Ordinance is 14 years’ imprisonment.

10.Although in her Reasons for Verdict, in finding the appellant not guilty of the charge laid under section 75(1), the judge found specifically that there was insufficient evidence to be sure the appellant intended to use those credit cards, clearly that finding inferred a determination that there was insufficient evidence that the appellant intended that another use them for the impugned purpose.  In that context, the judge’s observation in her Reasons for Verdict that the appellant might give the credit cards to “other persons for fraudulent use” is to be taken as an observation that there existed a risk that, if the appellant passed on the credit cards to others they might make fraudulent use of them, rather than that the appellant intended that consequence.

11.As was noted in the judgment of this Court, delivered by McMahon J, in HKSAR v Lau Kam Tin (CACC 139/2008; unreported, 21 November 2008) paragraph 32 :

“ (not) every possessor of forged credit cards can be taken to have the intentions required by section 75(1) of the Ordinance.”

How then is a judge in sentencing to mark the distinction between those, like the appellant, who have no intention that the credit cards be used in the impugned manner, from those who are found to have that intention?  On the judge’s findings, the appellant’s culpability lay in the fact that whilst he was in possession of the four credit cards, he “knew them to be forged”.  In that knowledge the appellant must have been aware that if the credit cards came into the possession of others that was a risk that they might be used illegally.  Of the extent of the risk, as noted earlier, the judge observed that two of the credit cards had been used fraudulently, but that had happened six months prior to the arrest of the appellant.  In those circumstances, it would seem most likely that steps would have been taken by the account holder and/or the credit card company to ensure that further fraudulent transactions could not occur.  To that extent the risk would have been ameliorated.

12.In our judgment, in all the circumstances of this case, and having regard to the factors of his culpability identified earlier the sentence of 2 years’ imprisonment imposed on the appellant was manifestly excessive.

Conclusion

13.Accordingly, we quash the sentence of 2 years’ imprisonment imposed upon the appellant and in its place impose a sentence of 18 months’ imprisonment.

Ms. Irene Fan, SPP, of the Department of Justice, for the Respondent

Appellant, in person, present