HKSAR v. Mah Kah Loon

CACC 209/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 209 OF 2013

(ON APPEAL FROM DCCC NO. 269 OF 2013)

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JUDGMENT

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Hon McWalters J (giving the judgment of the court):

Introduction

1.The applicant was charged with four counts of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200 and one charge of possessing a false instrument, contrary to section 75(1) of the Crimes Ordinance, Cap 200.  He pleaded guilty to these offences before District Court Judge Johnny Chan (“the judge”) on 4 June 2013.  He was sentenced to 2 years’ imprisonment for each of Charges 1 to 4 and 1 year’s imprisonment for Charge 5.  The judge ordered the sentences for Charges 1 to 4 to run concurrently with each other but 6 months of the sentence for Charge 5 to run consecutively to the sentences for Charges 1 to 4.  Consequently, the total period of the imprisonment imposed upon the applicant was 2½ years.

2.On the 17 June 2013 the applicant applied for leave to appeal against his sentences.

Background to the Offences

3.The offences concerned the possession and use of forged credit cards. The applicant is a Malaysian national who arrived in Hong Kong on 16 December 2012.  On 21 December 2012 he, together with an unknown female, went to a Fortress shop and purchased a mobile phone valued at $5,698.  In payment for this mobile phone the female tendered a forged American Express OPTIMA Card in the name of Ang Kim Hoe.  This transaction was successfully completed and is the subject of the first charge.

4.Shortly after this transaction, the applicant and the female with him decided to purchase another mobile phone of the same model.  The female again tendered the same credit card in order to pay for this second transaction but when the sales person called the credit card centre to obtain an authorization code for this card, he was told to report the matter to the police.  When that was done, the unknown female quickly left the shop but the applicant was stopped by shop staff pending the arrival of the police officers.  This transaction is the subject of the second charge.

5.When the police officers arrived at the Fortress store, they arrested the applicant.  At the time of the arrest, the applicant was searched and from his inside jacket pocket another American Express Credit Card was seized.  Although this credit card was in the name of the applicant, it too was a forgery.  The applicant’s possession of this forged credit card is the subject of the fifth charge.

6.When the applicant was subsequently interviewed under caution by the police, he admitted that he knew that the American Express Card used to purchase the phones from Fortress and the American Express Card seized from his person were forged and that it was illegal to use them.  He claimed he did not know the female who was with him, other than that she was also a Malaysian national, and this was the first time he had met her.  He admitted that he had used the forged credit card with her and said that he and her were each given a credit card by a person to whom he owed money with instructions to make purchases with the forged credit cards in order to offset his debt.  But he claimed he did not know the creditor and had no method of contacting him.

7.Further investigations by the police revealed that the card that had been used by the female in the Fortress store had also been used on 21 December 2012 at a Gucci store in the Elements Mall and at a Links of London shop in the IFC Mall.  Both these transactions had been successfully processed and the value of goods purchased was $7,650 from the Gucci store and $5,580 from the Links of London store.  These transactions are the subject of the third and fourth charges.

8.CCTV from these shops showed the applicant with the same female and showed her handing over a credit card in payment for the goods being purchased and signing on the credit card payment slips.  The staff of the shops from which the purchases had been made positively identified the applicant as being the person with the female when the fraudulent transactions were made.

The Reasons for Sentence

9.After reciting the facts the judge noted that the applicant had a clear record, was born in Malaysia and was then 28 years of age.  He had received Form 5 education and was working as an electrician and decoration worker in Malaysia.  He is married and resided with his wife and parents in Malaysia.

10.It was explained on his behalf that the reason for his involvement in these criminal offences was because he had incurred debts of $20,000 through gambling and was told by his creditor that he could use these credit cards as a means of paying off the debt.  His counsel submitted that the applicant had played the role of only a secondary party and had merely been present at the transactions acting as an assistant to the unknown female who was the person who actually tendered the forged credit card.  It was also said in mitigation that the applicant had been in Hong Kong from 16 December but had not immediately embarked upon a shopping spree as he did not commence his fraudulent use of the credit cards until 21 December.

11.Counsel for the applicant also asked the judge to regard the offences as stemming from one connected course of conduct and urged the judge to bear in mind the totality principle.

12.The judge said that he regarded these offences as very serious in nature and he had regard to the comments of the Court of Appeal in Attorney General v Chan Piu Sang and another [1994] 1 HKCLR 211.  In this case the Court of Appeal emphasised the serious nature of the offences and warned offenders that they could expect to be dealt with severely by the courts.  He also referred to decisions of the Court of Appeal in R v Chan Sui-to and another [1996] 2 HKCLR 128 which said that offenders who were part of a medium sized operation not involving an international operation should receive a sentence after trial of 5-6 years’ imprisonment and to HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517 which emphasised that the actual loss incurred through credit card fraud was less important than the potential for loss.

13.The judge was of the view that the applicant played an active, though not the leading, role in a medium sized forged credit card operation.  This operation, he said, clearly had an international dimension as both the applicant and the woman with him had travelled to Hong Kong to commit the offences.

14.The judge took as his starting point 3 years’ imprisonment for Charges 1 to 4 and then allowed the applicant a one-third reduction for his guilty plea and clear record.  For Charge 5, he took a starting point of 18 months’ imprisonment and reduced that by one-third for the guilty plea and clear record.  He thereupon sentenced the applicant to 2 years’ imprisonment for each of the offences in Charges 1 to 4 and 1 year’s imprisonment for the offence in Charge 5.

15.The judge then said that he would take into consideration the totality principle but formed the view that a total period of 2½ years’ imprisonment would sufficiently reflect the overall culpability of the applicant for all five offences.  In order to achieve this sentence, he ordered that the sentences of 2 years’ imprisonment for Charges 1 to 4 should run concurrently with each other but 6 months of the sentence for Charge 5 should run consecutively to the sentences for Charges 1 to 4.

Grounds of Appeal

16.The grounds of appeal all focus on the decision of the judge to order 6 months of the sentence for the fifth charge to be served consecutively to the sentence for the other charges which, it is said, has resulted in a total sentence of 2 years and 6 months that is manifestly excessive.  In support of this complaint the applicant argues that the judge has erred by failing to recognize that the conduct in Charge 5 took place at the same time as the other offences and that the purpose of the applicant in possessing the card was the same as for the other offences.  These errors, it is said, led him to erroneously ordering that 6 months of the sentence for Charge 5 be served consecutively to the sentences for Charges 1-4.

Discussion

17.The judge characterized the criminal enterprise of which the applicant was a part as a medium sized credit card fraud.  That would normally attract a post-trial sentence of 5-6 years’ imprisonment.  Here, the actual losses were not great but there was potential for substantial losses.  One of the reasons why there was this potential was because of the existence of the second forged credit card.  There was also present, as the judge correctly recognized, an international element with members of a criminal syndicate entering Hong Kong specifically for the purpose of committing credit card fraud here.

18.Reflecting this the judge adopted starting points of 3 years’ imprisonment for Charges 1-4 and 18 months’ imprisonment for Charge 5.  If the fifth charge was ordered to be wholly consecutive to the others it would have made a total sentence of 4½ years’ imprisonment; a sentence that would have been consistent with his portrayal of this criminal enterprise as a medium sized credit card fraud.

19.The first question, therefore, is was the judge wrong to regard the applicant as a participant in a medium sized credit card fraud.  We are of the view he was not.  The applicant was acting in partnership with another and admits that they were under instructions from a person who provided them with the forged credit cards.  Up-market brands and readily disposable items were being targeted and it would clearly not have taken many transactions before the actual losses became considerable.  We can see no error by the judge in his assessment of the scale and seriousness of this enterprise.

20.The applicant’s criminal activity has been charged as five offences and this, of course, required the judge to impose a sentence for each offence and then make decisions on whether those sentences should be ordered to run concurrently, or otherwise, taking into account the totality principle.

21.In ordering the sentence for the fifth charge to be served partially consecutively to the other charges the judge was clearly taking into account his overall assessment of the applicant’s criminal activity and striving to impose a total sentence which would reflect that assessment.

22.The argument of the applicant is essentially that the fifth charge is part and parcel of the conduct of the first four charges and so the judge has erred in making it partially consecutive.

23.We do not agree.  The correct approach to sentencing for multiple offences is as laid down by this Court in HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690.  That approach requires an examination of the culpability of the offender’s conduct in respect of the different offences with which he is charged and a determination of whether the culpability in each of the offences adds to the culpability of the others.  In the present case the question becomes whether there is culpability in the fifth charge additional to the culpable conduct being prosecuted in the first four charges.

24.In our view the answer to this question is obvious and it is yes there is.  The first four charges concern past conduct committed with a credit card different from the forged credit card whose possession is the subject of the fifth charge.

25.The fifth charge focuses upon the possession of a tool or implement to enable the future commission of other credit card offences.  Had the fifth charge particularised the credit card used in the first four offences then the argument of the applicant would have had force. But, it does not; it relates to a different card whose possession not only increases the potential for loss it also demonstrates that this conduct is not just a simple one person one card fraud but a medium sized international credit card ring.

26.The argument advanced by the applicant has no merit and, in fact, the applicant is fortunate his sentence is not longer.  Had the prosecution charged the applicant with a single offence of conspiracy to use false instruments the argument being advanced would not be available to the applicant.  No complaint could have been made of the judge’s assessment that this was a medium sized credit card fraud or that 4½ years’ imprisonment was an appropriate starting point for such a fraud.  Had that happened the applicant would now be serving a sentence of 36 months’ imprisonment instead of the 30 months he received.

27.This application is totally without merit and it is dismissed.

[Submissions as to loss of time]

Hon Stock VP:

28.We take the view that this was an entirely unmeritorious appeal which warrants the exercise of our power under section 83W and we order that four weeks during which the applicant has been in custody pending the determination of his appeal shall not be reckoned as part of the term of the sentence for which he is, for the time being, subject.

Mr Derek Lai ADPP (Ag), of the Department of Justice, for the respondent

Mr Fan Shun Yan Edward, instructed by S.H. Chan & Co, assigned by D.L.A., for the applicant