以欺騙手段取得財產罪的量刑是否過重？維持原判

### 案件基本資料 - 案件名稱：HKSAR v TANDON WILLIAM CHAING (蔣威廉) - 法院：高等法院上訴法庭 (Court of Appeal, CA) - 法官：Lunn JA, Macrae and McWalters JJ - 判決日期：2013年8月15日 ### 案情摘要 上訴人蔣威廉承認三項以欺騙手段取得財產 (obtaining property by deception) 罪，涉及在四個月內使用三張不同信用卡在三間商店購買總值港幣96,500元的貨品。他被閉路電視拍到犯案，並被店員認出。原審法官判處上訴人總共39個月監禁，其中部分刑期同期執行，部分分期執行。上訴人曾有11次出庭紀錄，涉及33項罪行，其中15項為不誠實罪行，最近一次是在2006年因類似罪行被判監40個月。上訴人就其判刑提出上訴。 ### 核心法律爭議 本案主要法律爭議為原審法官判處的監禁刑期是否明顯過重。上訴人爭辯指其使用信用卡沒有加重情節，沒有涉及偽造信用卡，且涉案財物價值相對較小。他亦指出自2008年上次出獄後未再犯不誠實罪行，應獲減刑。控方則強調上訴人有多次類似不誠實罪行紀錄，且其聲稱「拾獲」信用卡的說法存疑，顯示其持續犯案的嚴重性。 ### 判決理由 上訴法庭維持原審判決，認為原審法官在判刑時已充分考慮所有相關因素及案例。法庭特別指出，原審法官以三年監禁作為每項控罪的量刑起點，並因上訴人過往的類似罪行紀錄而額外增加三個月刑期，是恰當的。法庭引用了HKSAR v Kwan Po Keung一案，該案批准以三年監禁作為未經授權使用信用卡的量刑起點。儘管上訴人聲稱自2008年後未再犯不誠實罪行，但法庭認為其未能從過往經驗中汲取教訓，持續以不誠實手段侵害銀行、商戶及公眾利益，因此加重刑罰是合理的。 ### 引用案例與條文 本案主要引用了HKSAR v Kwan Po Keung [2012] 2 HKLRD 12，該案確立了未經授權使用信用卡罪行的量刑起點。此外，法庭亦引用了HKSAR v Chan Pui Chi [1999] 2 HKLRD 830，以支持因被告人屢次犯案而加重刑罰的原則。 ### 裁決與命令 上訴法庭駁回上訴人就判刑提出的上訴。法庭認為原審法官的判刑並無明顯過重，且已充分考慮所有相關事實和法律依據。上訴人應慶幸未被判處更高的刑期。 ### 判決啟示 本案重申了在判斷刑期時，被告人過往的類似罪行紀錄是重要的加重情節，即使被告人聲稱在一段時間內沒有再犯同類罪行，若其未能從中汲取教訓，法庭仍可因此加重刑罰。法庭強調，屢次犯案顯示被告人對公眾利益的持續侵害，判刑應反映其嚴重性。 --- ### 免責聲明 本摘要由人工智能自動生成，內容可能存在錯誤或遺漏，僅供參考，不構成法律意見。如需法律建議，請諮詢合資格律師。### Case Details - Case Name: HKSAR v TANDON WILLIAM CHAING - Court: Court of Appeal (CA) - Judge: Lunn JA, Macrae and McWalters JJ - Date of Judgment: 15 August 2013 ### Factual Background The appellant, Tandon William Chaing, pleaded guilty to three charges of obtaining property by deception. Over four months, he used three different credit cards (belonging to two different people) at three different shops to purchase goods worth HK$96,500. He was captured on CCTV and identified by a shop staff member. The trial judge sentenced the appellant to a total of 39 months' imprisonment, with some sentences concurrent and some consecutive. The appellant had a significant criminal record, including 11 previous court appearances involving 33 offences, 15 of which were dishonesty offences. His last appearance for similar offences in 2006 resulted in a 40-month imprisonment sentence. The appellant appealed against his sentence. ### Key Legal Issues The core legal question was whether the sentence imposed by the trial judge was manifestly excessive. The appellant argued that there were no aggravating features in his use of the credit cards, no forged cards were involved, and the value of the property obtained was relatively small. He also highlighted that he had not committed any dishonesty offences since his last discharge from prison in 2008, seeking mitigation. The prosecution emphasized the appellant's extensive record of similar dishonesty offences and questioned his claim of having 'found' the credit cards, indicating the persistent nature of his offending. ### Ratio Decidendi The Court of Appeal upheld the original sentence, finding that the trial judge had fully considered all relevant factors and precedents. The Court specifically noted that the judge's starting point of three years' imprisonment for each charge, enhanced by an additional three months due to the appellant's previous record of similar offences, was appropriate. The Court referred to HKSAR v Kwan Po Keung, which approved a three-year starting point for unauthorized credit card use. Despite the appellant's claim of no dishonesty offences since 2008, the Court found he had failed to learn from experience and continued to prey on banks, businesses, and the public through his dishonesty, justifying the enhanced sentence. ### Key Precedents & Statutes The primary precedent cited was HKSAR v Kwan Po Keung [2012] 2 HKLRD 12, which established a sentencing starting point for unauthorized credit card use. Additionally, HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 was cited to support the principle of enhancing sentences for persistent re-offending. ### Decision & Orders The Court of Appeal dismissed the appellant's appeal against sentence. The Court concluded that the trial judge's sentence was not manifestly excessive and that all relevant facts and legal authorities had been duly considered. The appellant was considered fortunate not to have received an even higher sentence. ### Key Takeaways This judgment reaffirms that a defendant's past record of similar offences is a significant aggravating factor in sentencing. Even if a defendant claims a period of desistance, if they have not learned from past experiences and continue to engage in dishonest acts, the court may impose an enhanced sentence. Persistent offending demonstrates a continued threat to public interest, which sentencing should reflect. --- ### Disclaimer This summary is AI-generated and may contain errors or omissions. It is for reference only and does not constitute legal advice. Please consult a qualified lawyer for professional legal advice.