HKSAR v. Christopher Edward Docherty

DCCC799/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 799 OF 2009

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Before:   Deputy District Judge A. Kwok

Date: 31 August 2009 at 3.46 pm

Offence:  (1) to (5) Using a false instrument (使用虛假文書)

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Reasons for Sentence

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1.The defendant pleaded guilty before me this afternoon to five charges of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap. 300.

2.Now, according to the facts which were agreed by the defendant, the five offences all took place in the same afternoon between 1.30 pm to 3.30 pm on 30 May 2009.  He first went to Fortress at Tsim Sha Tsui and used an IKEA American Express card in the name of another person to purchase two I-phones valued at HK$12,400 (Charge 1).

3.He then went to another Fortress at Shan Tung Street, Mongkok, where he used the same credit card to purchase another two I-phones valued at HK$12,400 (Charge 2).

4.Next, he went to another Fortress shop, this time at Nathan Road, Mongkok, to purchase yet another two I-phones at the same price with the same credit card.  However, the transaction was rejected after the shopkeepers swiped the credit card and the defendant just took it back and left the shop (Charge 3).

5.A few minutes later, the defendant returned to the same shop and approached the same shopkeeper again and demanded to purchase three this time I-phones for HK$18,600.  This time he presented another IKEA American Express card but with a different name for payment.  As the female name, Jennifer, was noticed, the shopkeeper was feeling suspicious and asked the defendant to produce his proof of identity.  The defendant then revealed that this credit card belonged to his friend who was not in Hong Kong.  The shopkeeper refused to accept the payment with the use of another’s credit card.  As a result, she cancelled the transaction, voided the payment and returned this credit card to the defendant (Charge 4).

6.Finally, and seemingly not deterred, the defendant went to a different shop called Digital Action Telecom Company in Mongkok to continue to purchase two I-phones valued at HK$12,400 with the same credit card which he has failed to use in Charge 4.  By this time, the transaction was rejected.  When the shopkeeper of this shop told the defendant that he needed to contact the bank as a result, the defendant became very nervous and snatched the credit card from him and fled.  The shopkeeper later successfully stopped the defendant outside the shop and made a report to the police, Charge 5.

7.After the arrest, the police retrieved a total of four I-phones in the backpack worn by the defendant at the time of the arrest.  Under caution, the defendant admitted to the police during later investigations that:-

(1) These two credit cards were given to him by some unknown males in mainland China on around 18 to 22 May 2009.  The unknown males told him that he could easily make money and have fun with the cards.

(2) When the unknown males gave him the credit cards, he saw that they had cards of a different type other than those given to him.

(3) He was not told whether the credit cards were fake or genuine, but he was told that using the credit cards in Hong Kong will be the best choice and it was safer to use them in Hong Kong than in mainland China.

(4) He was told to make as many purchases as he could and the profit would be shared amongst him and the unknown males.

(5) He was instructed that if he used the credit cards, the cards must be thrown away or destroyed.  He should, however, keep the credit cards if they had not been used unless in a dangerous situation.  If he was found in possession of the cards, it would be safe for him to claim that he had just found the cards, and

(6) He used the first credit card to purchase two I-phones in Fortress in Tsim Sha Tsui and later two I-phones in Fortress in Mongkok.  He attempted to buy another two I-phones in a smaller mobile phone shop in Mongkok with the second credit card, but the transaction was rejected.  He then threw the first credit card on the ground upon the arrival of the police.

8.The security officers of the American Express confirmed later with the police that the two credit cards found by the police were forged credit cards.

9.The defendant has a clear record.  He is 23 years old.  He is a citizen of Australia and is a university graduate there.  Before coming to Hong Kong, he worked as an English teacher in various cities in Guangdong Province, China since 2006.  He is still single, and his father passed away some eight years ago of cancer, leaving his mother who is now in her 60s behind to take care of the two sons and a deteriorating family business.

10.In mitigation, Mr Egan submitted to this court a letter of mitigation written by the defendant.  In it, the defendant expressed his sorrow and regrets for what he has done and the disgrace and the distress he had brought to the family and to his mother in particular.

11.The defendant also told me how he ended up to be involved in the present offences.  Through Mr Egan, he told the court that at the time before he took up the offer to use these forged credit cards to make purchase in Hong Kong, he faced tremendous financial problems in connection with his job in China, especially with travelling expense, having to travel to Hong Kong to renew his tourist visa before the necessary working visa for his teaching post was to be obtained by the school on his behalf.

12.He said he later met a bunch of bad characters in a Muslim restaurant in Guangzhou, who talked him into these criminal activities.  The defendant vowed to continue his study while serving his time in Hong Kong and promised not to re-offend again in the future.

13.Using credit card is, of course, a very serious offence.  But after reviewing the facts of this case, I agree with Mr Egan’s submissions that this present case is also one of the small-scale credit card offences.  He referred me to one of my judgments in June this year, citing the Court of Appeal decision in HKSAR v Tu I Lang CACC464/2006 where the Court of Appeal had said in that case that:

“Where the facts of the offence point to a small and sophisticated 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 three years’ imprisonment or less would be appropriate.”

14.Mr Egan stressed the word “less than three years” and urged me to adopt that as the starting point and also to order that the sentence on all five charges to run concurrently, taking into account the defendant’s clear record and exceptionally good background.

15.In my mind, this present offence involved a total number of five transactions with two forged credit cards, although in the end only two were successful.  Four items were successfully purchased, which is valued in the total amount of about $25,000.  Taking into account that there were five actual using of the forged credit cards involving two forged credit cards, I am of the view that a starting point of 3½ years on each charge is more appropriate.

16.Taking into account that the five offences were all committed in the same afternoon within a short span of about two hours, which represented a series of defendant’s misconduct in the same day, I agree with the submission by Mr Egan that the sentence on each charge can be run concurrently.

17.Therefore, my final order for sentence is this.  In each charge, the sentence would further be reduced by one-third to reflect the discount on account of the defendant’s plea, which I can see is the only mitigating factor in this case.  Therefore, the sentence on each count is 28 months’ imprisonmen to run concurrently.