HKSAR v. Chan Chi Nam

DCCC774/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 774 OF 2009

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Before:   Deputy District Judge Casewell

Date: 25 August 2009 at 3.11 am

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Reasons for Sentence

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1.The defendant has pleaded guilty to a total of seven charges and they fall into chronologically three separate incidents.  The first was on 16 February 2009 and at that time the defendant committed three offences of using a false instrument and one offence of possessing false instruments. 

2.In relation to the first three charges, the defendant used a forged credit card to obtain goods.  On three separate occasions he used the same credit card to obtain some pills, five blue-ray discs and also some clothes and the grand total of the goods obtained was of a value of about $2,500.

3.In relation to the 4th charge, the defendant was arrested on the same day.  The goods obtained by the forged credit card were located on him and two further credit cards were found, a Bank of America Visa card and another Bank of America Platinum card.  So on that day, the defendant had a total of three credit cards, all of which were forged.  The defendant made admissions on that day but was released on bail and later on on 18 March he committed the 5th and 6th offences which both relate to the use of two further cards to obtain goods. 

4.On that occasion, the forged credit cards were used to obtain goods of around $6,000.  Now again the defendant was arrested and again the defendant was released on bail and this led to him committing the 7th offence on 24 April, the 7th offence involving again the using of a false instrument which was a further forged credit card and on this occasion the card was used to settle a payment of about $1,600 for shirts and children's clothing and again the defendant after this was arrested. 

5.So the series of offences showed that the defendant had in his possession and used a total of six forged credit card and obtained goods of a total of just over $10,000 with those credit cards.

6.The defendant has made a full admission and has a clear record.  As far as the defendant's personal situation is concerned, he is 29 years old, he is a transportation worker.  He lives with his father and younger sister in Fanling.  His father is 70 years old and suffers from diabetes and hypertension and he has a younger brother who is a godown worker.

7.Now, as far as the sentence is concerned, there are some guidelines as to how court should approach these cases.  In the case of R v Chan Siu To there are a number of factors the court should take into account and those are factors such as the size of the operation, how much planning has gone into it, if there is any international dimension, the role the defendant has played and whether he has pleaded guilty or not. 

8.Now, in another case which is HKSAR v Tui Lang on the case 464 of 2006, the court said:

“Through a number of cases involving the simple possession or use of a small number of credit cards, this court has approved starting points of sentences of 3 years' imprisonment where the operation involved could be fairly described as small-scale.” 

And again it is said,

“Where a small unsophisticated operation involving only one or a few forged 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.”

9.As far as the observations would be in respect of this case is that the size of the operation is clearly small, it is $10,000-odd in total.  It does involved six credit cards but by the standards of these courts, that is not a substantial number.  The offences itself seem to be simple and unsophisticated, merely the presentation of the card, the cards themselves not actually being in the defendant's name.  There is no international dimension and the defendant plays the role of the person who obtains the goods by use of the credit card.

10.Now, taking all those factors into account, I have decided in this case to adopt a starting point of 3 years' imprisonment on each charge and the defendant is entitled to a full discount of one-third which brings the sentence on each charge down to 2 years' imprisonment, so the sentence on each of charges 1 to 7 will be 2 years' imprisonment.

11.Now, as I said, the offences fall into three separate incidents and the final two sets of offences which are the 5th and 6th and 7th were committed on two separate occasions whilst the defendant was on bail for the first four and this is an aggravating factor which will have to be reflected in the overall totality of sentence.  The defendant was released on two separate occasions, yet still committed further offences.

12.I have decided to approach this factor in the following way in an attempt to achieve a correct overall totality.  Now, offences 1 to 4 were committed on the same day and I shall order them all to run concurrently to each other.

13.Offences 5 and 6 again constitute a separate incident and I will order that 4 months of the sentences on those charges be served consecutively to 1 to 4 and the balance of 20 months to be served concurrently.

14.On charge 7, I will order that 4 months of that sentence be served consecutively to charges 1 to 6 and the balance of that sentence to be served concurrently to those charges.

15.Now this will lead to an overall sentence of 2 years 8 months' imprisonment which I believe constitutes a correct and overall totality for this series of offences.  So the final sentence will be 2 years and 8 months' imprisonment.