HKSAR v. Seeput Phattharanarin

DCCC656/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 656 OF 2010

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Reasons for Sentence

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Charges

1.The defendant pleaded guilty to the following two charges: (1) using false instruments, i.e. two forged credit cards, contrary to section 73 of the Crimes Ordinance, Cap. 200; (2) possessing false instruments, i.e. six forged credit cards, contrary to section 75(1) of the Crimes Ordinance.

Facts

2.Facts of the case can be summarized as follows.

Charge 1

3.At about 8.15 pm on 25 April 2010, PW1, a sales assistant, was on duty at the Duty Free Shop located on the 1st floor, Chinachem Golden Plaza, at Tsim Sha Tsui.  The defendant, a Thai visitor, approached PW1 and asked to see a few LV bags.  Later, the defendant decided to buy a LV bag valued at HK$13,800.  She took out a TD Green Visa Card no. 4246-3151-6270-3498 in the name of Phattharanarin Seeput (hereinafter called “Card 1”) for payment.

4.PW1 suspected that this card was a fake and security personnel were alerted.   Whilst asking the defendant to wait for the processing of Card 1, PW1 also told the defendant that she could try another card if she wished to.  The defendant then took out a Capital One Platinum Master Card no. 5222-7631-2902-7466 in the name of Phattharanarin Seeput (hereinafter called “Card 2”) and gave it to PW1 for payment. 

5.PW1 suspected that Card 2 was also a forged credit card.  Although the defendant insisted to get back Card 1 and Card 2.  She then left the shop without getting the two cards back.  Outside the shop the defendant was stopped by the Duty Free Shop security guard and was brought to the security room of the Duty Free Shop. 

Charge 2

6.Upon search by the police, 6 forged credit cards were found in the defendant’s wallet.  The defendant was arrested.  Under caution, she remained silent. 

Mitigation and background of the defendant

7.The defendant is aged 35, a Thai national.  She has a clear record.  She arrived Hong Kong from Thailand on 21 April 2010.  The defendant claimed that out of financial difficulties, she committed the present offences.  She explained that due to her father’s indebtedness, their residence was mortgaged.  Being a farmer and a single parent of a 13-year-old son, she was unable to pay off the mortgage.  To avoid losing home for her family, she was tempted to participate in the criminal activities involving using false credit cards.  Eventually, she was caught red-handed and arrested for the present offences.  She felt remorseful and hoped for a lenient sentence. 

Court’s observation and consideration

8.In our case the value of the involved goods were less than $14,000.  There were altogether 8 credit cards found on the defendant. All were in the name of the defendant.  Two of which were used by the defendant at the material time.  The defendant was undeniably taking an active role in this criminal activity.  She was a Thai visitor.  She carried these cards with her specially made and manufactured in her name in order to commit crimes in Hong Kong.

9.Although no clear evidence to suggest the case was of international dimension, it was nevertheless a well-planned crime. There was every reason to believe that but for her arrest, she would have continued to use the credit cards.  (See: HKSAR v Watt Siu Hung CACC93/2001.)

10.In the Court of Appeal of HKSAR v Cheung Ka Wo, Johnny [2002] 2 HKC, two genuine credit cards, belonging to another person were used, value of the involved goods were less than HK$9,000, it was held that the amount proved to have been lost by the fraudulent use of the credit card was an important factor to be taken into consideration in sentencing for this kind of offences.

11.It was the potential for losses which was the most important consideration.  In that case Stuart-Moore VP had observed that:

“It is well known that in this jurisdiction severe sentences are given to those who commit offences of the kind with which we are presently concerned as a deterrent sentence to others who are like-minded. One justification for this is that the integrity of the credit card system is highly important in these days and age and the confidence which people ... are entitled to place on this aspect of modern commercial life is necessarily eroded by others who attempt to beat the system by fraudulent methods.”

12.Immediate terms of imprisonment were the norm. Severe sentences were given for such offences as a general deterrent. 

13.The operation in our case could be undoubtedly described as small scale.  The circumstances in our case were fairly similar to that in HKSAR v Tu I Lang CACC464/2006 whereby a Taiwanese visitor used a forged credit card to purchase a mobile phone from a shop in Mong Kok.  It was found that the defendant’s name was different to that on the credit card. Two other forged credit cards were also found on the defendant.  The appeal court held that an appropriate starting point of sentence for each offence of using a forged credit card and of possession of two credit cards was 3 years’ imprisonment.

14.In our case, more forged credit cards were used and found in the defendant’s possession.  They were all manufactured in her name. 

Sentence

15.Having taken into account of the mitigation advanced by the defence lawyer, including the defendant’s clear record and her guilty plea, the circumstances and background of this case and of the defendant, the various non-exhaustive factors suggested by the Court of Appeal in R v Chan Sui To and another [1996] 2 HKCLR 128 and the overall criminality of this defendant, this court would adopt a starting point of 3 years for each of the offence.  Such sentence would be reduced for one-third for her plea to 2 years’ imprisonment. 

16.As the two offences were closely related and could be treated as a single transaction, this court would then order the sentences to run concurrently.