HKSAR v. Tsai Wai Tak, Eagle
Read the full judgment text of DCCC 303/2009 on BabelCite. This District Court judgment.
1. The D pleaded guilty to 1 charge of using false instrument [contrary to section 73 of Cap 200] and another charge of possession of 2 other false credit cards [contrary to section 75(1) of Cap 200].
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DCCC 303/2009 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL ACTION NO. 303 OF 2009 ----------------------
---------------------- Coram : Her Honour Judge M. Yuen in Court Date : 13th May 2009
----------------------------- Reasons for Sentence ----------------------------- 1.The D pleaded guilty to 1 charge of using false instrument [contrary to section 73 of Cap 200] and another charge of possession of 2 other false credit cards [contrary to section 75(1) of Cap 200]. 2.This is a stereotyped case of small-scale credit card fraud practiced at the user level. The defendant went to a commodity counter in Jusco Department Store in Kornhill and presented a false credit card in the name of another for the purchase of HK$1530 worth of fish maw. When the sales lady failed to obtain an authorization code for use of the defendant’s credit card for payment, she suspected the card to be forged. She informed the security officer of the department store. The defendant was apprehended by the security officer and handed over to the police officers. When searched by the police, the defendant was found to possess 2 more counterfeit credit cards. 3.The 3 credit cards were subsequently examined and confirmed by the government chemist to be forgeries. The particulars of the 3 credit cards were:-
4.Since the Court of Appeal decision of Cheung Ka Wo Johnny CACC-136/2001 the sentence for street level practice of small-scale credit card fraud has regularly been pitched at the starting point of about 3 to 3 ½ years imprisonment. The sentencing yardstick maintains at more or less the same level since [see the more current cases of Shanly Yau (邱凱珊) CACC-201/2006 (8/3/07) and Tu I Lang (杜壹朗) CACC-242/06 (18/5/07) and Au-Yeung Shu Sang (歐陽樹生) CACC-272/2006 (20/7/07)]. 5.I recite the words of the Vice President Mr. Justice Stuart-Moore in Johnny Cheung: “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 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.” 6.In Chen Wing Hong CACC-40/2005 Mr. Justice Lugar-Mawson reinstated the importance of imposing deterrent sentence to maintain the integrity of the credit card system to avoid erosion of public confidence in Hong Kong as a commercial centre. Mr. Justice Lugar-Mawson further stated the actual financial loss with the use of the fraudulent credit card is not the only factor to be taken into account, rather the potential for future loss with the continued use of the false cards ought to be considered in meting out sentence. 7.The defendant, aged 30, was born in the mainland. He came to Hong Kong in 1990 to join his parents. Since 1999 he moved away from his parents and went back to live in Shenzhen. He worked as a casual delivery worker. His co-habitant and his 5 years old child both lived in the mainland. In mitigation it was said the defendant was lured into the illicit activities to make his living. He needed the money as his cohabitant is pregnant. 8.The defendant said in mitigation his wife deserted him in 2007 leaving him with his 5 years old son. Parents of the defendant told the probation officer that the wife of the defendant had in fact visited the defendant’s parents over the Chinese New Year in 2008. To the parents’ understanding the 5 years old son of the defendant is staying with maternal grandparents of the child. 9.The defendant had 5 previous conviction records in Hong Kong between the years of 2000 and 2006. His previous convictions were for theft and selling infringing copyright items. He has no previous similar of credit card fraud. 10.Defence solicitor has urged upon the court for leniency on account of the defendant’s remorse. Nevertheless this is the type of offence for which custodial term is generally the norm. 11.The defendant used 1 false credit card in an attempt to purchase HK$1500 fish maw. He had with him 2 other forged credit cards. None of the credit cards bore his name. Of the 3 false credit cards, two of them bore the name of Chan Kwok Keung and the 3rd card bore the name of CHU Yiu Kai. The defendant told the investigating officers that he had been given the forged credit cards to make purchases in return for a financial reward of 5% for the value of the goods he acquired. 12.On account of the potential risk of loss, there is really not much difference in terms of criminality between the 1st and 2nd charges. In light of the small-scale operation in the present fact circumstances, I consider a starting point of 3 years imprisonment appropriate for the 2 charges. 13.The strongest mitigating factor is the defendant’s plea of guilty, indicating his remorse. I accord him 1/3 discount for both of his 2 offences. For the two offences, I impose respectively a term of 2 years imprisonment. Taking totality into consideration, I allow both terms to run concurrently. 14.The total duration is still a period of 2 years in respect of the two charges.
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