HKSAR v. Chan Pan

DCCC123/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 123 OF 2010

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Reasons for Sentence

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1.The defendant pleaded guilty to 3 offences, namely 1 charge of "Theft" (Charge 1) and 2 charges of "Possessing false instruments" (Charges 2 and 3).

Summary of Facts

2.At about 4:30 pm on 26 December 2009, the defendant went into Treasure Palace Jewellery Company Limited located at Tin Yiu Shopping Centre, Tin Shui Wai ("the Shop"). She selected a diamond ring (its price was $10,800) and produced a credit card (as particularized in Charge 2) to Mr. LEI (PW1), manager of the Shop, for payment.

3.PW1 took the credit card to the cashier room to process the transaction. Since the defendant looked nervous, PW1 felt suspicious and tried to call the card centre to verify the authenticity of the credit card. At that moment, the defendant told Madam FUNG (PW2), a saleslady of the Shop, that she wanted to use the washroom. PW2 took the defendant to the door and showed her the way. The defendant left the Shop and took away the diamond ring (which was already wrapped in a gift box).

4.When PW2 returned to the Shop, she discovered that the defendant had taken away the diamond ring. She immediately gave chase and managed to stop the defendant 50 metres away from the Shop. The diamond ring was recovered. This is Charge 1.

5.A report was made to the Police. PC 7023 (PW3) attended the scene to handle the matter. Subsequently, 2 more credit cards (as particularized in Charge 3) were found inside the defendant's handbag. The defendant was arrested.

6.On the following day (27 December 2009), the defendant admitted, under caution, that in October 2009, she lost money gambling in Macau and owed a loanshark $100,000. The loanshark told her to collect the seized credit cards, which were wrapped in a plastic bag and placed underneath a rubbish bin outside the Pak Ho Street Public Toilets. Thereafter, she was told to purchase items at the Shop using those credit cards. After PW1 had taken her credit card to the cashier room, the defendant felt scared. She therefore pretended looking for a washroom and asked an employee to show her the way. The defendant then took the diamond ring and left. But a staff member of the Shop stopped her shortly thereafter. The defendant knew that all 3 credit cards were forged.

7.Dr. LEE (PW5), a Forensic Scientist of the Government Laboratory, examined the 3 credit cards (as particularized in Charges 2 and 3). He confirmed that they were all forged. This is Charges 2 and 3.

Mitigation & Sentence

10.The defendant is now 41 years old and has a clear record.  Defence lawyer Ms. CHAN informed me that the defendant has no relatives in Hong Kong and has been divorced twice.  Her 2^nd divorce took place in 2007.  The defendant became addicted to gambling after her divorce.  She owed a debt of about $100,000.  The defendant has already asked her 2^nd ex-husband for help.  He settled about $10,000 for her.  As a result, the loanshark asked the defendant to be a prostitute, but she refused.  The defendant was then given the forged credit cards to make purchases.  She felt scared at the Shop, but she was also scared of the loanshark.  She therefore took away the diamond ring.

11.I note that 2 out of the 3 counterfeit credit cards are in the defendant's name.  In order to obtain forged credit cards bearing the user's name, some advance planning must be required.  Based on her admissions, the defendant was clearly manipulated by a counterfeit credit card syndicate.  I note that she was unwilling to assist the loanshark and felt scared, but she only has herself to blame.  She got herself into this predicament by indulging in gambling.

12.According to the relevant sentencing authorities cited in Sentencing in Hong Kong (5^th edition), credit card offences are serious and must be deterred.  Even a small scale credit card fraud with small losses by an offender who is not alleged to be part of a larger syndicate can attract 3 years imprisonment on a guilty plea.  In HKSAR v SUEN Tat-yeung, Ricky HCMA 709/2006 (unreported), the appellant tried to use a forged credit card to purchase a pair of gold bracelets worth $19,800 in a shop in Disneyland.  He pleaded guilty and was sentenced to 16 months imprisonment.  The sentence was upheld by Deputy High Court Judge Barnes (as she then was) on appeal.

13.A clear message must be conveyed to the general public that "credit card fraud" is a serious crime and that offenders would be punished by a substantial prison term.

14.For Charge 1, I adopt a starting point of 15 months imprisonment.  For Charges 2 and 3, I adopt a starting point of 2 years each.  One-third discount is given for her guilty pleas, reducing the sentences to 10 months for Charge 1 and 16 months each for Charges 2 and 3.  After considering the overall criminality of all 3 charges and the totality principle, I order the sentences for Charges 2 and 3 to run concurrently; and 10 months in Charges 2 and 3 to run consecutive to Charge 1, arriving at a total term of 20 months for all 3 charges.