HKSAR v. Leung Kwok Chung, Kent

DCCC41 & 581/2010(CONS)

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 41 & 581 OF 2010 (CONSOLIDATED)

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Reasons for Sentence

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1.The defendant pleaded guilty to five charges of using a false instrument (Charges 1, 2, 4, 5 and 6) and two charges of possessing false instruments (Charges 3 and 7).

2.The facts he admitted are summarised as follows. Aeon Stores (Hong Kong) Company Limited was trading as Jusco with branches situated at Wong Tai Sin (“Wong Tai Sin Jusco”), Tsuen Wan (“Tsuen Wan Jusco”) and Tuen Mun (“Tuen Mun Jusco”).

1st Charge (Using a False Instrument)

3.On 14 September 2009, Mr Wong Tin-kwan, PW1, was working as a cashier at Wong Tai Sin Jusco. The defendant presented to him a BANKIONE Visa card issued in the name of Leung Kwok-chung (“Card 1”) and successfully purchased an Acer computer with accessories at the price of $2,998.

2nd Charge (Using a False Instrument)

4.Later, on the same day, the defendant presented Card 2 to another cashier at Wong Tai Sin Jusco and successfully purchased a set of SKII products at the price of $3,135.

3rd Charge (Possession of False Instruments)

5.At 5.45 pm on the same day, police officers were patrolling outside the cosmetic section of Wong Tai Sin Jusco. They found the defendant walking out from the shop in a nervous manner. Defendant was intercepted. Upon inquiry, the defendant said he had purchased the items found on him with credit cards. At the same time, he produced three credit cards which were:

(1)  Card 1;

(2)  one Hbc MasterCard issued in the name of Leung Kwok-chung (“Card 2”); and

(3)  one BANKIONE Visa card issued in the name of Leung Kwok-chung (“Card 3”).

6.However, the defendant failed to disclose the source of the said credit cards. Eventually, he told the police officers that he had purchased the goods with forged credit cards. Under caution, the defendant said he used forged credit cards because he was jobless. The defendant was charged accordingly on 12 January 2010, and court bail was granted to him.

4th Charge (Using a False Instrument)

7.At about 3 pm on 6 March 2010, Mr Liu Sze-lam was working as a cashier at Tsuen Wan Jusco. The defendant presented to him one GM Visa card issued in the name of Kent Leung (“Card 4”) and successfully purchased one octopus ornament at the price of $398.

5th and 6th Charges (Using a False Instrument)

8.At about 5.18 pm on 6 March 2010, Madam Lung Siu-wai was working as a cashier at Tuen Mun Jusco. The defendant presented to her one Bank of America Visa card in the name of Kent Leung (“Card 5”) to purchase a pack of SKII facial treatment essence at the price of $980. When the cashier processed the transaction, the card data machine showed that the transaction was not accepted. The defendant then took out another card (“Card 4”) from his wallet for the payment. The transaction was then accepted.

7th Charge (Possession of False Instruments)

9.Soon afterwards, the police officers patrolling Tuen Mun Jusco found the defendant acting suspiciously. They intercepted him for inquiries, but the defendant suddenly turned around to flee. He was immediately apprehended. Upon a bodily search, Cards 4 and 5 and the goods he purchased were found. Upon arrest and under caution, the defendant admitted the offences.

10.Upon forensic examination, all the five credit cards used or possessed by the defendant were confirmed to be forged credit cards.

11.The defendant is aged 47. His personal and family background are unremarkable. In mitigation, his counsel said the defendant committed the offences because he had failed in his partnership business in operating a bar and incurred a heavy debt. While it was noted that the defendant had 10 previous convictions with 6 involving forgery or false instruments, his counsel pointed out that the last similar conviction was back in 2001. His counsel also asked the court to take into consideration that all the stolen goods had been recovered and there was no sign of syndication or international dimension.

12.Offences involving forged credit cards are all serious offences. I only need to quote the judgment of Litton JA in R v Kwan Ying Ho CACC527/1992 that:

“Credit card frauds have in recent years been an insidious poison in the community.  It affects a large number of citizens.  It erodes the credit card system and damages Hong Kong’s standing in the international community.”

The courts have therefore always passed severe sentence in this kind of offences.

13.In R v Chan Sui To [1996] 2 HKCLR 128, a guideline was imposed for medium-sized operation at 5 to 6 years’ imprisonment after trial. I accept that the present case falls below “medium‑sized operation” described in Chan Sui To and there is no evidence of international dimension in it. Examination of some cases of small-scale credit card fraud would reveal that about 3 years’ imprisonment would be adopted as a starting point.

14.In HKSAR v Watt Siu Hung CACC93/2001, two forged credit cards were used to obtain goods of value in excess of $3,000. The Court of Appeal upheld a starting point of 3 years’ imprisonment. In HKSAR v Cheung Ka Wo, Johnny [2002] 2 HKC 517, two forged credit cards were used to obtain cosmetic worth $8,500. Again, the Court of Appeal upheld a starting point of 3 years’ imprisonment. In HKSAR v Lau Pui Hang CACC393/2003, two credit cards were involved. Starting point of 3 years’ imprisonment was considered appropriate.

15.The defendant in this case used one forged credit card to obtain goods at a total value of about $6,000 on two successive occasions in Wong Tai Sin Jusco on 14 September 2009. He was also in possession of another two forged credit cards. It should be noted that the three forged credit cards were all in the defendant’s name. While the defendant was on court bail for these offences, he used another two forged credit cards to obtain goods at a value of about $1,400. The cards were also in the defendant’s name.

16.I accept that all the stolen goods have been recovered and the value of the goods are not much. However, it is the potential for losses which is the most important consideration. While there is no evidence of syndication, the fact that all the cards were in the defendant’s name shows the defendant’s deliberate plan at the outset to obtain false credit cards matching his name in order to reinforce the credibility of the false credit cards. Although there was no evidence that the defendant had used the two credit cards in Charge 3, I am sure that he would use them had he not been arrested.

17.I notice that his last similar conviction was in 2001. That was a long time ago. I will take a global approach for these three charges and use 3 years’ imprisonment as starting point for the three charges to run concurrently.

18.Charges 4 to 7 were committed while the defendant was on court bail. The previous sentences and even a pending trial obviously could not deter the defendant from committing further offences. I consider that a more severe sentence should be passed to deter the defendant from committing further offences. I will also adopt a global approach and use 3 and a half years’ imprisonment as starting point for Charges 4 to 7 to run concurrently.

19.The defendant is a recidivist with appalling record for similar offences. I cannot find any mitigating factors in favour of the defendant except his plea of guilty, for which he will get a one-third reduction. His financial difficulties cannot be accepted as a mitigating factor to reduce the sentence.

20.The offences in Charges 4 to 7 are entirely separate and distinct from Charges 1 to 3. In principle, the sentences in these two groups of charges should run separately. However, in view of the principle of totality, I will order part of the sentences to run concurrently.

21.I therefore order sentence as follows: Charges 1 to 3, 2 years’ imprisonment for each charge, all run concurrently; Charges 4 to 7, 28 months’ imprisonment for each charge, all run concurrently. I order 18 months of the overall sentence in Charges 4 to 7 to run consecutively to the sentences in Charges 1 to 3, the rest concurrently. The total term of imprisonment is 3½ years.