HKSAR v. Chan Yuk Ming

DCCC661/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 661 OF 2010

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Reasons for Sentence

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1.The defendant pleaded guilty to three charges of using a false instrument, and two charges of attempted to use a false instrument.

2.The facts of the case are relatively simple.

3.On 4 February 2004, the defendant went to the New Town Plaza in Shatin, in the New Territories, with a false credit card.

4.He went into different shops in the New Town Plaza intending to make purchases with the false credit card. He succeeded in the first three attempts, but he failed for the last two.

5.In the course of the defendant’s endeavour to use the false credit card to make purchases, a member of staff of a sportswear shop suspected that the defendant’s credit card was a fake one and called the police.

6.The defendant was subsequently arrested by the police after he failed to complete a transaction with the false credit card at the Watsons store.

7.After his arrest, the defendant was released on police bail but he failed to answer his bail since then.

8.He was rearrested on 4 May this year.

9.The defendant is now 35 years of age, married with a young daughter. He has a previous conviction for using an identity card relating to a person and was fined $2,000 back in 1992. For the purposes of sentencing, I am prepared to disregard this conviction on the ground that it was an old conviction and it related to a charge of a completely different nature.

10.Mr Pickavant, who appears for the defendant today, informs this court that back in 2004, the defendant, after committing the present offences, was too scared to face the consequences. Therefore, he decided to go to Shenzhen, where he worked, got married until he was rearrested in May this year.

11.Mr Pickavant says the defendant was rearrested in May this year, but in fact, he had returned to Hong Kong some time in 2006, 2007. But when he was at the border, he was told by an immigration officer that he was not on any wanted list.

12.He was told to contact the police, which was something that the defendant did not do. He thought that everybody might have forgotten about the matter. But of course, it turned out that in fact it was not forgotten. He was rearrested by the police this year.

13.Despite the fact that he chose to avoid the legal consequences of his wrongdoing in the past, Mr Pickavant says the defendant is now determined to face up to reality by pleading guilty to all the charges.

14.In his submissions, Mr Pickavant draws my attention to a number of Court of Appeal decisions on sentence involving use or possession of forged credit cards.

15.In short, Mr Pickavant asks me to give consideration to cases of HKSAR v Tu I Lang, CACC646/2006, and HKSAR v Yau Hoi Shan Shanly, CACC209/2006, to find that the present case is only a small scale, unsophisticated credit card fraud with no international dimension which should only call for a starting point of less than 3 years.

16.In adopting the appropriate starting point in the present case, I have given careful consideration to all the submissions made on the defendant’s behalf and the relevant circumstances of this case.

17.I take note that the defendant has pleaded guilty to five charges, but only one false credit card was involved.

18.I agreed at the end with Mr Pickavant’s submissions that the present case is certainly not one of the worst of this type that this court has dealt with in the past.

19.Although the defendant on the face had avoided the authorities’ detection for some six years, he was never charged with any offence for his behaviour, and according to Mr Pickavant, there were changes to his life for the past 6 years.

20.He is now a married man, he has responsibilities not only just to his wife but to a little daughter as well. He is determined to turn over a new leaf.

21.After carefully considering all the relevant circumstances, I am prepared to give the defendant a chance by adopting a lower starting point of 2 years’ imprisonment in respect of each of the five charges.

22.The defendant pleaded guilty to all five charges, and is therefore entitled to one-third discount.

23.The sentences on all charges are therefore reduced from 2 years to 16 months.

24.On the question of totality, in light of the fact that these offences were committed within a short period of time on the same day involving only one credit card, I am of the view that the sentences can be made concurrent.

25.The end result is that the defendant will have to serve 16 months' imprisonment for all five charges.