HKSAR v. Tam Man Chung

DCCC 184/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 184 OF 2010

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Reasons for Sentence

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Charges & facts

1.The Defendant pleads guilty to 2 charges of using a false instrument, namely 2 credit cards on 23 December 2009, at Levi’s Store, Shop No. 373, Grand Century Place, No. 193 Prince Edward Road West, Mong Kok, Kowloon.

2.In the shop, the Defendant selected two belts, three pairs of jeans, one upper garment and six underpants at $4,010 in total. He presented 2 credit cards in turn for payment. Each was rejected by the credit card terminal. The deputy shop manager found it suspicious and covertly asked the security department of the shopping mall to report to the police. She then returned the cards to the Defendant, who was stopped by the security guard and then shortly afterwards arrested by the police.

3.Under caution he said that he used the credit cards to buy clothes out of momentary greed.

4.A forensic scientist examined the 2 credit cards and found that they were forged.

Defendant’s personal particulars and mitigation

5.The Defendant is 24 years of age. Apart from possession of dangerous drugs, he has a number of previous convictions for theft and copyright infringement. He was educated up to P6. He last worked as a sales promoter of computer game softwares in a shop. He earned $7,500 per month. He lived with his mother and fiancée, who was found to be pregnant soon after he committed the present offences.

6.There is a certificate for voluntary work organized by YMCA done by the Defendant spanning from August 2009, which was before the present offences, to March 2010, namely the present moment. So far he has rendered weekly work for about 40 hours in total as hairdresser for the elderly.

Sentencing principles

7.In HKSAR v Chan Sui-to [1996] 2 HKCLR 128, 131, the Court of Appeal held that a sentencing judge would need to consider 5 factors before deciding the level of sentence, although Yang CJ went on later to say that this was not intended to be an exhaustive list. Those factors were as follows:

(1)  The size of the operation e.g. whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards;

(2)  The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent;

(3)  Whether there is an international dimension;

(4)  Whether the accused played a major role, e.g. running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he is a mere ‘cog in the wheel’ as a courier or a custodian or keeper;

(5)  Whether there is a plea of guilty.

8.In HKSAR v Hung Ping-wah, CACC 241/1997 and 488/1997, the total sum involved related to goods valued at $7,000. The appellant pleaded guilty to two charges of using a false instrument and a third charge of possession of forged instruments. There was no suggestion of an international dimension and no evidence of a syndicated operation. An overall starting point of four years for the two charges of using a false instrument was regarded by the Court of Appeal as having been "on the high side", but "not manifestly excessive". There was, however, the further factor in that case, namely, that following the appellant's arrest, he was found to have had ten more false credit cards in his possession.

9.In HKSAR v Watt Siu-hung, CACC 93/2001, the value of the goods obtained on the two forged credit cards was slightly in excess of $3,000. The sentencing judge took a starting point of three years for these offences which Mayo VP in the Court of Appeal said was on the high side but was not manifestly excessive. The court also commented that:

“There was every reason to believe that but for his arrest he would have continued to use the credit cards.”

Sentence present Defendant

10.There is no sign of syndication or international element. The culpability is on the lower side of the scale. I take 2 years and 6 months (or 30 months) as the starting point for each charge. I reduce it by one-third due to his plea of guilty. I further reduce it by 2 months in recognition of his voluntary work. Each of the sentences is 1½ years’ imprisonment. They shall be concurrent.