HKSAR v. Chan Ka Ming

DCCC1219/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1219 OF 2008

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Before:   H H Judge S. D'Almada Remedios

Date: 12 February 2009 at 10.05 am

Offence:  Using a false instrument, etc. (使用虛假文書等罪項) 

Reasons for Sentence

1. Defendant, you have pleaded guilty to four charges before me.  The charges all relate to false credit cards, and the first three charges relate to using a false credit card.  The fourth charge is that you were in possession of a false credit card.

2. In the early hours of 15 October 2008, the police had set up a roadblock at Pitt Street and Tung Fong Street in Yau Ma Tei, Kowloon.  At about 1.39 that morning you were a passenger on board a vehicle which was instructed to stop at this roadblock. 

3. In your bag that you were carrying a pair of gold bangles and a receipt issued by the TSL Jewellery Shop were found.  The receipt evidenced a sale of these gold bangles at HK$7,780.  The payment was made by an Altitude Visa card.  Inside the storage box on the car door next to where you were sitting in the vehicle the police also found this Altitude Visa card in the name of Cheung King-yin.  They also found another Visa card in the name of Nedbank Visa, also in the name of Cheung King-yin.

4. As the details of the Altitude Visa card matched the credit card details on the receipt you were questioned.  You said you did not know Cheung King-yin.  You claimed your friend, Leung Chun-wai, bought the pair of bangles on your behalf and handed the same over to you the previous evening.  You had lost contact of Leung as you threw away the pre-paid SIM card which had been used up.  You were arrested.

5. A body search was then conducted on you and a receipt issued by Watsons was found.  That was for the purchase of some pills at $3,645.

6. Investigation revealed that that same Altitude card had been used at about 1.24 on 15 October for a meal at Foo Lum Fisherman’s Wharf Restaurant at Nathan Road.  That amount was $1,283.

7. CCTV recordings of the TSL Jewellery and Watsons captured you in the respective transactions.  In this Jewellery company you were captured shopping in the shop at the material time, and in Watsons the CCTV captured you making payment at the counter at the material time.

8. Under caution, you admitted possession of the two forged credit cards; that you knew they were forged; that you were a buyer for a forged credit card syndicate; and that you had used one of the cards, the Altitude card, for purchasing the bangles, the pills at Watsons, and the meal.

9. Mr Ip, your solicitor, has made very full and thorough mitigation on your behalf.  He has written down much of his submissions in very good preparation for the court, and in his usual eloquence, he has asked the court to sentence you as leniently as is possible.

10. You are 30 years of age and of clear record.  You live with your mother but your father died in around 1985.  You are educated up to Form 3, and at the age of 17 began working in the food catering industry.  In early 2008 you commenced working as a bartender.  However, you became unemployed in around August 2008 as your employer had sold the business to a third party.

11. It was after you became unemployed that you mixed around with bad company and that was when in early October 2008 you were introduced to this Leung Chun-wai, who recruited you to be his runner for the two false credit cards in the name of Cheung King-yin.  You were to buy goods and in return for which you would be paid a fee of equivalent to about 10 per cent of the value of the purchased goods, which would then be handed over to Leung.  As you were unemployed and had no income, were short of money, you were persuaded to commit these offences.  After you were arrested, when you were interviewed by the police, you made a frank confession to these offences.  You have also pleaded before this court.

12. These offences were committed between about 8.30 pm on 14 October to about 1.30 am on 15 October.  You had used one false credit card for three transactions and were in possession of another.  The total amount involved in the use of the false credit card in the first three charges was $12,708. 

13. Clearly, for this type of forged credit card case the sentence is one of an immediate custodial sentence. 

14. I have regard to the case of HKSAR v Tu I Lang, CACC464/2006, when imposing my sentence upon you.  In that case, McMahon J had said that, “In cases involving the simple possession or use of a small number of credit cards, the Court of Appeal has approved starting points of sentences of 3 years’ imprisonment where the operation involved can be fairly described as small scale.”  He went on to say, “Small scale credit card offences cannot be subjected to strict guidelines.  That is because the facts of such offences can vary significantly in a number of ways, the number of cards possessed or used being perhaps the most obvious factor.

15. In this case, I accept this operation can be described as small scale.  You had used one credit card and had possession of another credit card.  There was no evidence of an international dimension, no elaborate planning and equipment.  I accept you did not play a key role but you did play an active part.  You knew that you were buying goods by a forged credit card for a credit card syndicate.  Upon this case coming to court before me you have now made full restitution to the credit card companies to the value of $12,708.  I must of course, and will, take this into account when sentencing you.

16. I take into account the principle of totality on all these four offences. 

17. Had I convicted you after trial I would have taken a starting point of 3 years’ imprisonment.  I give you full credit for your plea of guilty and therefore reduce that term to one of 2 years’ imprisonment. 

18. As a result of you making full restitution in the amount that you spent on the forged credit cards, I also give you a further reduction of 2 months, making a total term of 22 months’ imprisonment. 

19. I must sentence you for the individual charges.

20. On Charges 1 to 3 therefore the starting point would be 3 years' imprisonment reduced to 2 years, less the 2 months, and that be 22 months’ imprisonment.

21. On Charge 4, I take a starting point of 2½ years' imprisonment, give you full credit for your plea, which reduces that to 20 months’ imprisonment, all terms to run concurrent to each other.