HKSAR v. Leung Wa Man

DCCC81/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 81 OF 2010

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Reasons for Sentence

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1.The defendant has pleaded to one count of using a false instrument, namely a Washington Mutual Visa card issued in his name, with the intention of inducing Game Shop to accept it as genuine. The 2nd charge charges the defendant with possessing false instruments, namely two credit cards issued in his name.

2.The facts are very simple in that on 23 November, the defendant had gone to this Game Shop in Yuen Long and wanted to buy a Sony Game Station and a game disk worth $2,978. The defendant produced a Visa card issued in his name. The sales person inserted the card into the reader and then noticed that there is no magnetic chip on the Visa card, so he told the defendant that he needed to call the Visa Card Centre. At that point the defendant snatched away the card and fled. The sales person then made a report to the police.

3.The defendant’s image was captured on the CCTV camera inside the shop. At around 7.25 pm on the same day, PC1105 saw the defendant walking in Yuen Long. He approached the defendant with two other police officers. The defendant fled. The defendant was chased and finally intercepted and on his person was found the card he had originally used in count 1 and also two other Visa cards issued by two different banks. Both were in his name.

4.Under caution, the defendant admitted charge 1 and asked for a chance. When cautioned about the second and third cards found in his possession, the defendant said that the two cards were given to him by others and he did not want to say anymore. During the identification parade, the sales person of the Games Shop positively identified the defendant.

5.Subsequent examination by the forensic scientist confirmed that all three cards were counterfeit.

6.The defendant is aged 30 and has one previous conviction in 2008 which is not similar for which he was fined and he is divorced and has a seven year old daughter. I am informed by counsel in mitigation, Ms Chu, that he committed this offence because he needed money, basically he is on CCSO after losing his job in a restaurant and he needed money in order to put his daughter through school. He is divorced and his daughter was living with him but now is being taken care of by her grandparents.

7.As Ms Chu had correctly pointed out, the case of Chan Sui To had laid down certain factors that a sentencing judge should consider when considering sentences of this kind and basically after considering those factors I do agree that this is what can be considered a very small-scale operation. The amount is minimal and there is no international dimension and the defendant does not appear to have put in much planning apart from actually doing the important job of going to buy the goods. I am told that he was supposed to have been promised $1,000 a day for him to use the cards to make purchases.

8.These offences are very serious. There is a growing prevalence of theft of people’s identity in order to make these counterfeit cards and inevitably this affects the international reputation of Hong Kong. One case I can find which is similar to the present was the case of HKSAR v Tui I Lang CACC464/2006. The Court of Appeal there was dealing with an appeal against sentence in relation to an offence of using a forged credit card and an offence of possessing two forged credit cards. The appellant was sentenced to 4 years’ imprisonment as a starting point reduced to 32 months’ imprisonment because of his plea, both sentences to be served concurrently.

9.The facts in that case were very straightforward. The applicant in that case had arrived in Hong Kong from Taiwan and tried to buy a mobile phone from Fortress shop. He was subsequently arrested and on his person was found the two forged Visa cards. The Court of Appeal after taking into account Chan Sui To had said this at paragraph 8:

“It is equally true that in a number of other cases involving the simple possession or use of a small number of credit cards this court has approved starting point of sentences of 3 years’ imprisonment where the operation involved can be fairly described as small scale.”

And at paragraph 10 the Court of Appeal said:

“Where the facts of the offence point to 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.”

And in that case the Court of Appeal then allowed the appeal and sentenced the appellant in that case to a starting point of 3 years reduced to 2 years because of his plea and two sentences to run concurrently.

10.In this case I consider that the facts are similar to that case Tui I Lang and the only mitigating factor in this case is the defendant's plea of guilty. So having considered all that, I consider therefore a proper sentence would be a starting point of 3 years' imprisonment on each charge reduced to 2 years because of his plea on each charge and the sentences to run concurrently.