HKSAR v. Leung Kwan Po

DCCC 276/ 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 276 OF 2009

________________________

________________________

Before:  Deputy District Judge Eddie Yip

Date:      20 April 2009 at 1:04pm

______________________________

Reasons for Sentence

______________________________

The charges

1.The Defendant pleads guilty to 2 charges.  The 1^st Charge is “Using a false instrument”, contrary to section 73 of the Crimes Ordinance, Cap. 200 for the fact that he knowingly used a false credit card to purchase from Bauhaus, a fashion boutique in Metroplaza, No. 223, Hing Fong Street, Kwai Fong, New Territories, in Hong Kong.

2.The 2^nd Charge is “Possessing false instruments”, contrary to section 75(1) of the Crimes Ordinance, Cap. 200 for the fact that he knowingly possessed 2 credit cards both in his name outside Metroplaza. 

The facts

3.Bauhaus was a boutique situated at Shop No. 102, Ground Floor, Metroplaza.  NG was a saleslady of Bauhaus.  At around 1530 h on 29 November 2008, the Defendant and a male, HUI, were in the shop selecting merchandise.  Earlier on, the police had already found the duo suspicious before their entry.  They kept surveillance on the duo.  The duo selected 11 pieces of garments and accessories in the shop for a total sum of HK$7,477.  The Defendant presented a credit card, Washington Mutual Visa Card in his own name, for payment.  After payment was accepted, the Defendant left the shop.  The card was later analysed to be a counterfeit.  This is the 1^st Charge.

4.The police intercepted the Defendant outside Metroplaza.  He was carrying shopping bags of Bauhaus which contained the said merchandise.  Upon enquiry, he said that he had just shopped at Bauhaus with the said credit card.  The credit card was still on him.  He knew it was a counterfeit.  It was given to him by a friend.  Another credit card, a “bloomingdale’s Visa Card” in his own name, was also found on him.  In the subsequent cautioned interview, he said that a friend in a pub in Mongkok ahd offered to manufacture 2 credit cards in his own name.  He was to make purchases with the cards and share profit derived from the fraudulent purchases.  He was to go to Bauhaus, among other places, to make purchases and handover the merchandise to that friend afterwards.   

5.Both credit cards were later analysed by the government chemist.  They were found to be counterfeits.

The potential for losses

6.The prosecution and the defence agree to take a maximum spending limit of HK$7,500 for each of the 2 credit cards involved. 

Mitigation

7.D1 is now 28 years of age.  He has 2 previous identical convictions in 2008 for which he was concurrently sentenced to 4 months’ imprisonment.  He has received up to F. 4 education.  He worked as a part-time transportation worker before arrest.  He was married but separated with his wife.  Their daughter, by now 6-year-old, is in the charge of his wife.  He would contribute to his daughter’s upkeep when he was having an income.  He has 1 elder sister and 2 young brothers. 

8.His solicitor submits that the two offences formed one single transaction and should attract concurrent sentences.

The principles of sentence

Options in sentencing credit card fraudsters

9.There are no sentencing tariffs for credit card fraudsters but the customary sentence is imprisonment.  In HKSAR v Cheung Ka-wo CACC No 136/2001 Stock JA pointed out that：

11．It is well known that in this jurisdiction severe sentences are given to those who commit offences of the kind with which we are presently concerned as a deterrent to others who are like-minded.  One justification for this is that the integrity of the credit card system is highly important in this day and age and the confidence which people, as Mr Madigan pointed out in the course of his argument, are entitled to place on this aspect of modern commercial life is necessarily eroded by others who attempt to beat the system by fraudulent methods.

Determining the length of imprisonment

10.In HKSAR v Chan Sui-to [1996] 2 HKCLR 128, 131, the Court of Appeal held that a sentencing judge would need to consider 5 factors before deciding the level of sentence, although Yang CJ went on later to say that this was not intended to be an exhaustive list.  These factors were as follows: 

“	1.	The size of the operation e.g. whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards.
	2.	The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent.
	3.	Whether there is an international dimension.
	4.	Whether the accused played a major role, e.g. running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he is a mere ‘cog in the wheel’ as a courier or a custodian or keeper.
	5.	Whether there is a plea of guilty.

The factor of “Potential for losses”

11.In HKSAR v Yau Wai Chun CACC 417/ 2000 Stuart-Moore VP raised the issue of “potential for losses” as reflecting the degree of culpability.  He referred at para. 11 to HKSAR v Ng Swee Thiam and Others [2000] 1 HKLRD 778:

[T]he court stated in HKSAR v Ng Swee Thiam and Others [2000] 1 HKLRD 772 at 778 that it was the "potential for losses" which was the most important consideration in that case. This, it should be said, will often have relevance, as it does in the matter presently before us. It has long been recognised in Hong Kong that those who indulge in fraud of this kind can expect to be given severe sentences as it erodes the confidence which people are entitled to have in a society where great dependence is placed on the credit card method of payment. (See: Attorney General v Chan Piu-sang and Another [1994] 1 HKCLR 211).

An example of sentence

12.There was quite a near example found in HKSAR v Kita Yashushi & Anor CACC 470/2006.  In that case, each of the two applicants pleaded guilty to the charges of using a false credit card to purchase a Rolex watch (the charge of using a false instrument), which purchase was verified by a false passport (the charge of using a false passport), and possessing 3 false credit cards and the false passport.  The Court of Appeal regarded that the starting points should have been:

(1)   3 ½ years for using the false credit card to purchase the Rolex watch;

(2)   18 months for using the false passport; and

(3)   3 ½ years for possessing the 3 credit cards and the false passport.

13.Taking in account the pleas of guilty, the sentences became 28 months, 12 months, and 28 months respectively.  On totality, each applicant was sentenced to 32 months in total.

Concurrent or consecutive sentences

14.In Attorney General v Cheung Pit-yiuCAAR 11/1988, Cons VP said:

6．This Court has more than once had cause to restate the general principle that concurrent sentences are only appropriate for offences that can properly be said to have been committed in the course of a single transaction. That can hardly be said of offences involving …… occasions which occurred in separate months. We agree therefore with the submission of Mr. Cross, who now appears for the Attorney General, that the concurrent sentences in fact passed below would be wrong in principle, unless of course, the principle of overall totality required that in the circumstances no further punishment should be imposed. 

The sentence I pass

15.Applying the 5 non-exhaustive factors laid down in Chan Sui-to (supra), our present case reveals the following features:

(1)     There were 2 counterfeit credit cards.  The potential loss for each card was only HK$7,500.  Only 2 people were involved: the Defendant and his friend. 

(2)     The planning was not sophisticated;

(3)     Despite the card issuers’ foreign names, there was no international element;

(4)     The Defendant’s role was to give his name for the manufacturing of his own card and the using of such cards as instructed;

(5)     There is a plea of guilty.

16.For the 1^st Charge, I take a starting point of 2 ½ years.  I reduce it by one-third because of the plea of guilty.  There are no other mitigating factors.  The sentence is 20 months’ imprisonment.    

17.For the 2^nd Charge, I take a starting point of 2 ½ years.  I reduce it by one-third because of the plea of guilty.  There are no other mitigating factors.  The sentence is 20 months’ imprisonment.

18.The two offences did not form a single transaction.  I do not think that the possession of them automatically led to the using of them although there was some obvious link between the two stages.  According to Cheung Pit-yiu (supra), consecutive sentences should be passed.     However, on totality, I order that only 4 months of the 2^nd Charge should be consecutive to the 1^st Charge.  Therefore the total length will be 24 months in all.