HKSAR v. Chung Wing Faat

DCCC 446/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 446 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to two charges, one of using a false instrument, contrary to section 73 of the Crimes Ordinance, and the second of possessing false instruments, contrary to section 75(2) of the same ordinance. He has agreed with that and I convicted him of those offences.

2.The facts are very straightforward.  The offences occurred on 27 February this year.  In the evening at about 1940 hours when the defendant went to a shop in Kwai Chung Plaza and attempted to use a credit card, and the credit card was in his own name and was printed of the China Merchants Bank VISA Card in the defendant’s name.  He attempted to make payment for two mobile phones, and the person he presented it to was suspicious of the quality of the card and asked for the defendant to show his identity card for verification and then made a report to police.

3.The transaction never went through, so there is no loss on this to the credit card company.  The police arrived shortly afterwards to investigate the matter and conducted a body search on the defendant.  What they found then was an ANZ Debit MasterCard in the name of a Yip Lap-ue, an RBC Business Creditline VISA Card again in the name of Yip Lap-ue, both in the defendant’s possession.

4.Now, the defendant made a denial at the scene and said later under caution that he discovered these items in a rubbish bin. Of course the three items which are listed as exhibits E1, E2 and E3 were all forged credit cards. 

5.The defendant’s antecedents are, as far as the defendant’s -- as a young man, he is aged 24.  He is a person of clear record. He was working as an air-conditioning mechanic upon his arrest and was in receipt of an income of around $10,000 per month. 

6.The remaining mitigation of the defendant is that he lives with his parents in a public housing unit and he was proposing to be married, but unfortunately for him, he will have to postpone that until the outcome of any sentence of imprisonment consequent upon these offences.

7.The defendant has written a letter of apology and remorse.  I also have a letter from his employer that speaks highly of him as an employee. 

8.The further mitigation is that this was a - I think I have to paraphrase it - it was a stupid crime, it was poorly organised, unsophisticated.  There was in fact no loss to the credit card company or the companies to which the credit card was presented.

9.I have been referred to the case of HKSAR v Tu I Lang which is CACC 464/2006 which gives some indication to how offences of this nature involving forged credit cards should be approached. Paragraph 10 says the following:

“Where the facts of the offence point to a small unsophisticated operation, involving only one or a few forged credit cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate.”

10.And in this case the offender was a Taiwanese national, he only arrived in Hong Kong the day before the offences.  So I assume from that he would have been a clean record in Hong Kong. 

11.The defendant’s mitigation is that he is a person of clear record, a young man.  The facts that have been presented show a small and relatively unsophisticated operation involving only a few credit cards.   There is no link to a larger operation or to any international dimension in this crime, and it would appear that the starting point proposed in Tu I Lang would be the appropriate one for this case as well.  So I will adopt that starting point on both charges of 3 years’ imprisonment.  The defendant is entitled to a full discount for his plea of guilty.  That brings the sentence to one of 2 years’ imprisonment on each of Charges 1 and 2.  Those sentences will necessarily be served concurrently to each other, giving a total of 2 years’ imprisonment for these two offences.