HKSAR v. Tandon William Chaing

CACC 404/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 404 OF 2012

(ON APPEAL FROM DCCC 616/2012)

____________

____________

______________

J U D G M E N T

______________

Hon Macrae J (giving the judgment of the Court):

1.The appellant was convicted on his own plea before HH Judge Yau of three charges (Charges 1, 4 and 5) of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210. He was sentenced to a total of 39 months’ imprisonment, which sentence was achieved by adopting an initial starting point of three years’ imprisonment in respect of each charge, which the judge enhanced by a further three months because of the appellant’s previous record for similar offences. Giving a one third discount for plea, the judge passed sentences of 26 months’ imprisonment on each charge, the sentences on Charges 4 and 5 being made wholly concurrent with each other, while 13 months of the sentence on Charge 1 was ordered to be served consecutively to the sentence on the other two charges; with the balance to be served concurrently.

2.The appellant appeals against his sentence by leave of the Single Judge granted on 12 July 2013.

The Facts

3.The Summary of Facts disclosed that on three separate occasions over a period of four months, the appellant had used three different credit cards (belonging to two different people) at three different shops to purchase goods worth HK$96,500.  The appellant had been captured on closed circuit television making the purchases in the three respective shops and was subsequently formally identified by one of the staff in one of the shops. 

Reasons for Sentence

4.The first offence involving the purchase of a camera lens took place on 18 February 2011, while the two other offences involving the purchase of two Rolex watches in two different shops took place a few minutes apart on 13 June 2011.  The reason for the partly consecutive sentence on the first charge was explained by the judge as follows:

“Charge 1 was committed on 18 February 2011 while Charges 4 and 5 were committed on the same day within minutes of each other on 13 June 2011, which was some four months after the commission of the Charge 1 offence. There is no factual connection whatsoever between the incident in February and the incidents in June and they are completely separate decisions by the defendant to obtain property by deception made independently at different times.”

5.The judge further referred to the fact that the appellant had previously appeared before the courts on no less than 11 occasions involving 33 offences, 15 of them being offences of dishonesty.  As a result, he considered it appropriate to enhance the starting point for each charge by three months by reason of the appellant’s persistent offending.  It is worth noting that at his last appearance for offences of dishonesty in July 2006, the appellant pleaded guilty to using three credit cards (two of them stolen, the other forged) to obtain various goods and services, as well as possession of a fourth forged credit card, for which offences he had been sentenced in the District Court to 40 months’ imprisonment.  The total value of the goods and services purchased on those occasions was HK$27,692.

Grounds of Appeal

6.In his home-made grounds of appeal, the appellant complains that there are no aggravating features to his use of the credit cards in this case, which were each used only once without anyone else being involved; there were no forged credit cards involved; and the value of the property obtained by his actions was relatively small.  Accordingly, he maintains that the starting point adopted by the judge was manifestly excessive. He further points out by way of mitigation that he had not committed any offence of dishonesty since his last discharge from prison in 2008.

Discussion

7.So far as the starting point for sentence is concerned, the judge had before him, either at the behest of prosecuting or defence counsel, a number of relevant cases on sentencing involving credit card fraud.  They were R v Chan Sui To, (unrep) CACC 115 of 1996, HKSAR v Poon Cho Shu (unrep) CACC 55/2000, HKSAR v Tu I Lang (unrep) CACC 464/2006, HKSAR v Chan Ka Chung (unrep) CACC 379/2010, HKSAR v Chen Jiasheng (unrep) CACC 97/2011 and HKSAR v Kwan Po Keung [2012] 2 HKLRD 12.  In his address this morning, the appellant has referred us to another sentence passed at first instance in DCCC 622/2012, where a defendant was sentenced to 40 months’ imprisonment after trial in respect of goods valued at HK$340,000 which were obtained through the use of another person’s credit cards.  However, the facts of that case (in which the judge adopted an overall starting point of 4 years’ imprisonment before discounting the sentence by 8 months for certain unusual features) were wholly different from the circumstances of this case and the reference is of no assistance to the appellant.

8.Of the authorities to which reference was made, the one which the judge found most helpful, as have we, was Kwan Po Keung in which this Court (differently constituted) approved a starting point of 3 years’ imprisonment for the unauthorised use of one credit card belonging to another person on a single occasion in order to obtain jewellery and watches to a total value of HK$56,116.  Although comparisons with the sentences passed in other cases are often not helpful, we are dealing with three credit cards belonging to other persons on three occasions (albeit on two days) resulting in the obtaining of goods worth HK$96,500. 

9.We further note, as did the judge, that the Court in Kwan Po Keung considered an enhancement of four months’ imprisonment to reflect the gravity of the offence in the context of that applicant’s persistent reoffending.  In the case before us, as we have said, the judge likewise regarded the appellant’s previous convictions in respect of similar offences as an aggravating feature justifying the enhancement of the individual sentences by three months. 

10.Mr Edmond Lee for the respondent points out that, in the facts of his previous appearance before the District Court to which we have made reference, the appellant made the same claim as he did in this case, namely that he had found some genuine credit cards which he then proceeded to use to obtain property by deception.  Interestingly, in all three charges before us, the loss of the credit cards was noticed by the losers on the very same day they were used to perpetrate the offences.  The same thing had happened in respect of the two genuine credit cards in the previous case.  The coincidence of the appellant somehow finding and then using all of these cards on the very same day they were mislaid by the true owners is a remarkable one and would have entitled the judge to reject the way he claimed to have originally come into possession of the cards.  Not only does the coincidence call into question how the appellant came by the credit cards but it may also suggest that he was not acting alone.  Be that as it may, the appellant had to be dealt with, as he was indeed dealt with, in respect of the offences with which he was charged.

11.In relation to the matter of enhancement, it is worth repeating the observations of Stuart-Moore VP in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 at 833C-E:

“Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he has already served the penalty, the constant repetition of this applicant’s trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned. The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest.”

12.We are aware, as was the trial judge, that the appellant has not been before the courts for an offence of dishonesty since his last appearance before the District Court in 2006.  However, the appellant has evidently failed to learn from experience while the banks, businesses and the public continue to be preyed upon by his dishonesty.  In our judgment, in the light of his previous record of similar offending, the appellant could not have complained if the enhancement of his sentence had been even greater.

Conclusion

13.The judge conducted a very full and careful exercise in sentencing and was aware of all relevant facts both for and against the appellant, as well as all relevant authorities.  Neither in his approach to sentence nor in the eventual sentence he passed can he be faulted.  If anything, the appellant should consider himself fortunate.  He could not have complained on these facts, and with his antecedents, if he had received an even higher sentence.

14.The sentence in this case is in no way manifestly excessive and the appeal against sentence is dismissed.

Mr Edmond Lee, SADPP for Department of Justice, for the respondent

Tandon William Chaing, appeared in person