The Queen v. Chan Sik Kwan

HCMA001284/1989

IN THE SUPREHE COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL No. 1284 of 1989

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BETWEEN

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Coram: The Hon. Mr. O'Connor in Court

Date of Hearing: 16 & 20 October 1989

Date of Delivery of Judgment: 20 October 1989

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J U D G M E N T

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1. The appellant was convicted on his plea to possession of 3 forged credit cards. They were found in his possession in a street search. They were forgeries of cards issued to three Japanese persons in Japan. The appellant had two previous convictions, one of which, in 1987, was for evasion of liability by deception.

2. The learned magistrate, in his Reasons for Sentence, pointed out that offences concerning forged credit cards were more serious than those concerning stolen credit cards. He gave clear and cogent reasons for this view. Stolen card offences are likely to come more quickly to the attention of the credit card company, and therefore more quickly to the attention of retailers. The period of time within which stolen cards can be used, before the risk of using them becomes unacceptable, is therefore short. On the other hand, the risk in using a forged card is not likely to become unacceptable until the true card holder receives a statement of account which he notices to be incorrect, and informs the card company.

3. The magistrate noticed that the use of forged cards was frequent and increasing, out detection and prosecution of offenders was uncommon. He was entitled to take notice of that fact, which is I consider a matter of common knowledge among reasonably informed persons.

4. In sentencing for this offence one should draw the natural inference, in the absence of explanation to the contrary, that the cards are intended to be used for the purpose for which such cards are normally used, that is to obtain credit, see as regards drawing inferences for sentencing R v Jones 1974 Cr.L.R. 54.

5. The magistrate took 18 months as a starting point, and, because of plea and a favourable probation report, he reduced it to 12 months.

6. On appeal it is said that 18 months is too high a starting point, as the maximum sentence is 3 years imprisonment, and that not sufficient regard was paid to the favourable probation report.

7. I consider that, for the reasons given by the magistrate, 18 months is an appropriate starting point and I do not consider he gave insufficient discount for the matters in mitigation.

8. Appeal dismissed.

Representation:

Mr. R. Turnbull, Senior Crown Counsel, for Crown.

Mr. J Miller instructed by Messrs. Ip & Willis, for the Appellant.