HKSAR v. Thanasegaran Arumugam

CACC 314/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 314 OF 2014

(ON APPEAL FROM DCCC NO. 621 OF 2014)

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J U D G M E N T

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Introduction

1.On the 4 September 2014 the applicant appeared in the District Court before Judge Dufton (“the Judge”) and pleaded guilty to two offences on a Charge Sheet containing six charges.  The two charges to which he pleaded guilty were in fact charges 5 and 6 on the Charge Sheet and that is how I shall refer to them in this judgment.  The 5^th charge was “Using a false instrument”, contrary to section 73 of the Crimes Ordinance, Cap 200.  This charge alleged that on 26 April 2014, at a shop in Pacific Place Admiralty, the applicant used a false VISA credit card for the purpose of purchasing an item at this shop.  The 6^th charge which the applicant faced was “Possessing false instruments”, contrary to section 75(1) of the Crimes Ordinance, Cap 200.  This charge alleged that on the same day he was found in possession of 17 false credit cards. 

2.On the 5^thcharge the applicant was sentenced by the Judge to a period of 2 years and 2 months’ imprisonment and in respect of the 6^th charge to a period of 3 years and 4 months’ imprisonment.  Both sentences were ordered to be served concurrently and so the total sentence imposed upon the applicant was 3 years and 4 months’ imprisonment.

3.The applicant now applies for leave to appeal against the sentence imposed on him in respect of the 6^th charge.   

The Background to the Offence

4.In an “Amended Summary of Facts” the applicant admitted that he entered Hong Kong on 22 April 2014 and on the day of the charge entered the L’Occtaine store at Pacific Place where he tendered to the sales assistant an ANZ VISA card in the name of Mok J.Z. for payment of a bottle of perfume worth HK$520. He was subsequently intercepted in Pacific Place by police who on searching his person found him to be in possession of 17 credit cards, all of which were later confirmed to be forgeries and out of which 3 related to genuine accounts.  The total potential loss that could be caused by the 17 credit cards found in his possession was around HK$221,530.14.

Reasons for Sentence

5.In passing sentence the Judge took into account the factors set out in the Court of Appeal judgment in R v Chan Siu To [1996] 2 HKCLR 128, including the size of the operation; the planning that had gone into perpetrating the fraud; the presence of an international dimension; and the role played by the applicant.  He noted that for small unsophisticated fraudulent credit card operations the Court of Appeal said that a starting point of 3 years or less may be appropriate, but that higher sentences should be imposed where it was clear that the defendant was part of a wider organization that had caused cards to be printed specifically for him and where he was a visitor who had come to Hong Kong armed with forged credit cards to commit crime here. 

6.He also referred to the comment by the Court of Appeal in Chan Siu To that where an accused was part of a medium sized operation a sentence of 5 to 6 years after trial was appropriate.  He found that the fact that 16 of the 17 forged credit cards were in the applicant’s name showed his link to a wider organization that had caused the cards to be printed specifically for him.  Furthermore, the fact that the applicant had brought the cards to Hong Kong to commit crime added an international dimension to the case.

7.The Judge was satisfied that, given the number of credit cards and the potential loss that they could create, the applicant fell into the category of a medium size operation.  Consequently the Judge took at his starting point after trial on charge 5 a sentence of 3 years and 3 months’ imprisonment and on charge 6 a sentence of 5 years’ imprisonment.  Allowing the applicant credit for his pleas of guilty, these sentences became 2 years and 2 months’ imprisonment for charge 5 and 3 years and 4 months’ imprisonment for charge 6.  Those are the sentences that he imposed and he made an order that they be served concurrently. 

The Grounds of Appeal

8.The applicant is not represented and has not filed any grounds of appeal.  However, in a note attached to his Form XI, and on the Form XI itself, he makes it clear that he is only appealing the sentence imposed on him on charge 6. Before me today he has explained what it is that he is complaining about in respect of that sentence.  From what he said to me of the advice he had received from counsel he was clearly expecting a lower sentence.  He is also aware of other sentences imposed on other inmates for credit card fraud offences and he thinks that, by comparison to the sentences imposed on some of his fellow inmates, he has received an excessive sentence.  He also complains about the Judge’s finding that he should be sentenced on the basis of a medium size operation and cannot understand why the Judge said that there was an international dimension to the commission of this crime.

Discussion

9.I have carefully considered the Judge’s Reason for Sentence in respect of charge 6 and I can find no error in them.  He was perfectly correct in categorizing this as a medium size operation.  He was also correct to find that this offence was aggravated by their being an international dimension to it.  There is nothing excessive about the Judge’s starting point; indeed for an offence as serious as this the Judge might well have adopted a higher starting point.  The applicant’s application for leave to appeal his sentence in respect of charge 6 is refused.  

Mr Franco Kuan SPP, of the Department of Justice, for the respondent

The applicant appeared in person