HKSAR v. Fan Wing Yin

DCCC637/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 637 OF 2009

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Reasons for Sentence

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1.The defendant has pleaded guilty to two charges, first the using of a false instrument, and secondly, possessing false instruments.

2.The facts are quite simple and involve the use and possession of forged credit cards.  Now, the 1st charge relates to an incident that happened at the Chong Fai Jewellery and Gold Company, this was on 8 January this year.  The defendant attempted to purchase a gold necklace and gold foot chain from that shop valued at about $9,100.  She presented a Citibank Mastercard in her own name but the staff were suspicious and discovered that the card was not genuine and the defendant was then arrested.  She simply stated she used the forged credit card for other people because she owed money to others.

3.There was a search made of the defendant’s handbag and two further cards were found, a Visa card and a Mastercard, both in the defendant’s name.  Now, they were also forged cards as was the first card.  The defendant said in her interview that she owed $50,000 to a loanshark, she was unable to repay the loanshark and she used forged credit cards to make purchases for that person.  She was given the cards by the loanshark, she knew they were forged, she was asked to purchase gold ornaments with them and on the day in question she had used one of the cards.

4.The defendant accepted those facts and I convicted her of both offences.  As far as her antecedents were concerned, she is a lady of clear record.  She is aged only 26, she is educated to Form 4 standard, she was unemployed at the time when she was arrested.  She described herself as being married.  I also know that she is pregnant and expecting to deliver a child in December of this year.  By her plea of guilty the defendant had shown remorse.  I was also informed that she had a child who was aged six.  For those reasons I obtained background information on the defendant.

5.She has a child and she is expecting a child.  I also saw a letter written by her pastor who had some insight into her condition.  He described her as an honest and simple young woman but somebody who could be influenced by friends.  He said that she had now realised this problem that she had and was remorseful and she had a plan for repentance.

6.The background report set out the defendant’s history.  She was described as becoming wayward when she was a teenager.  She cohabited at an early age and had a son who was born out of wedlock.  Now this was with her first boyfriend who was a drug addict.  It was also established that the defendant had borrowed a lot of money for her boyfriend and the repayment of some of these debts was associated with her involvement in these crimes.  The defendant had married but that husband had disappeared some three years ago.  Now she has another boyfriend call Mr Ko who has known the defendant since December 2008 and cohabited with her since March 2009.  He was aware that she had been left with large debts.  As a result of her relationship with the new boyfriend, the defendant is now pregnant.  I am faced with a lady of hitherto good character who has in her employment history been involved in casual forms of employment, who prior to her arrest and incarceration was cohabiting with a person who will be the father of her child who she has plans to marry whenever she is released.

7.Now the offences themselves are serious offences and warrant lengthy terms of imprisonment even after plea of guilty.  The case of Chan Siu To enjoins the court to look at certain factors in determining that sentence.  Obviously I need to consider factors such as the size of this operation, what planning was involved, whether there is an international dimension and the role the accused played.  I believe the defendant’s involvement in these offences can be described as commonplace.  People such as her are used by loansharks who provide the means to them to involve themselves in illegal activity.  The operation is small.  The planning by the defendant is small as well.  There is no international dimension.  The defendant plays an important role in that she has to be the person who takes the risk of being arrested and convicted and she had obviously pleaded guilty and shown considerable remorse today.

8.Now, in setting the sentence I do not believe I can in any way depart from the usual normal starting point for offences of this nature which is 3 years’ imprisonment.  I will reduce that by one-third to reflect the defendant’s plea of guilty, so there will be a sentence of 2 years’ imprisonment on the 1st charge and the 2nd charge.

9.I have to consider the overall totality.  These are separate offences and the 2nd offence for the possession of the other forged cards could have involved further offences being committed, so at least part of the 2nd charge could be served consecutively to the 1st charge. 

10.However, I also have to balance the defendant’s personal situation.  She has a six year old son from whom she will be separated by this imprisonment.  She will also be giving birth to another child while she serves the term of imprisonment.  This child of course can remain in prison with her up to the age of two years, however, it is not necessarily the best upbringing for a young child to be in prison, and these factors lead me to consider that the overall sentence of 2 years is appropriate.

11.So I will order that the 1st and 2nd charges be served concurrently one to another and the overall sentence of imprisonment be one of 2 years’ imprisonment.