HKSAR v. Huang Shaoxia

DCCC321/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 321 OF 2010

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Reasons for Sentence

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1.Defendant, you pleaded guilty to two charges: a charge of attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance and section 159G of the Crimes Ordinance; and the other offence of using an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap.177.

2.You admitted that at around 1.30 pm on 5 February 2010, you entered the Emperor Watch & Jewellery (HK) Company Limited and sought to buy a Rolex watch valued at HK$148,396 with an American Express Cathay Pacific credit card which did not belong to you.  You had falsely represented that you were the genuine holder of that credit card when in fact it was issued in the name of another person.

3.The shop assistant saw that you were looking nervous and thus asked you to produce your identity card for checking. You produced that cardholder’s identity card.  The shop assistant noticed that the photo did not match you and that as you were looking nervous, he went to verify the transaction with the credit card centre.  They were informed by the card centre that that credit card was stolen.  All of a sudden, you left the shop without taking the credit card.  The shop assistant followed you, fortunately outside the shop, there were police officers, he immediately made a report to them, whereby they stopped and arrested you.

4.You admitted that you picked up the credit card and the identity card earlier that day in a street in Causeway Bay. You intended to use the credit card to make purchases, and you did so out of momentary greed.  The genuine credit card owner confirmed that she had lost her credit cards and ID card earlier that day.

5.You are 41 years of age and have two previous convictions appearing on one occasion in 1993 of entering Hong Kong as illegal immigrant and possession of a forged document of identity.  At that time, you were sentenced to 9 months’ imprisonment.

6.Mr Mui has made very full mitigation on your behalf today, and I have taken into account all that he had to say.  In brief, he has referred me to the case of Yau Wai Chun and R v Chan Sui To, citing the factors to be taken into consideration when sentencing for credit card frauds, and he has also asked the court to take into account the fact that you were in possession simpliciter of this ID card.  You committed this offence because of your very sick parents and husband and you were in financial need.  You had a heavy burden and pressure upon you to look after your family and son, and as a result, you resorted to crime.  You co-operated with the police early and you have also shown your remorse early by indicating a plea of guilty and of course your plea today.

7.You were here in Hong Kong this time on a two-way permit.  You are very remorseful for your acts.  The facts of this case are very similar to that in the case of Yau Wai Chun CACC417 of 2000.  In that case, the applicant and a male companion used a forged credit card for the purpose of buying a video camera at $15,000 at a department store in Taikoo Shing.  When the salesman decided to make a check with the card centre and the applicant saw him doing this, she requested him to return the card to her.  The salesman ignored that applicant’s request and called for a security officer to attend, and the applicant and the male companion then left the scene quickly.

8.In this case, you had gone to the shop and used a genuine credit card, falsely representing that you were the holder and had authority to use it.  You were asked to produce your identity card for checking and you produced the genuine cardholder’s identity card.  I am satisfied that you had used that identity card in an attempt to obtain those goods, that is, to further the offence of obtaining by deception.

9.In the case of Yau Wai Chun, the Court of Appeal upheld the sentence, imposed a starting point of 3 years’ imprisonment for the attempting-to-obtain-property-by-deception charge, and 12‑month starting point for the offence of the identity card, section 7A(1A) of the Registration of Persons Ordinance.

10.I consider the sentence in this case should be similar to that in that case.  The only factor relevant to you that I should take into account in the case of Chan Sui To is the amount of money involved in this case.  You attempted to obtain a Rolex watch to the value of $148,000-odd which was of relatively high value and almost 10 times the value of that in Yau Wai Chun.  No other factors apply to you from Chan Sui To, that is, there was no elaborate planning, no international dimension; you did not play a major role; you were the sole perpetrator of this crime.

11.Taking all the factors into account and the factor that you do have a similar conviction of possession of a forged ID card, I pass the following sentence.  For Charge 2, I take a starting point of 3 years’ imprisonment, and giving you full credit for your plea of guilty, reduce that term to 2 years’ imprisonment.  On Charge 3, I take a starting point of 12 months’ imprisonment, and giving you full credit for your plea of guilty, reduce that term to 8 months’ imprisonment.

12.I take into account the principle of totality and I consider that the sentence should be partly consecutive and partly concurrent.  I order 6 months of Charge 3 to run consecutive to Charge 2, the remainder of the term to run concurrent, and therefore you are sentenced to a total term of 2 years 6 months’ imprisonment for Charge 2 and 3.