HKSAR v. Yu Tsz Hang

DCCC718/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 718 OF 2010

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Reasons for Sentence

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1.The defendant pleaded guilty before me to the following seven charges: 1st, 3rd, 5th to 7th charges, using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap.200; 2nd and 4th charges, obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap.210. These were forged credit card offences and a total of three cards were involved.

2.The Summary of Facts, which the defendant admitted, revealed that in the afternoon of 11 May 2010, he used a forged GM VISA card to purchase two iPods with a total value of HK$6,176 from a shop in the Pacific Place. The transaction was successful and this is the subject matter of the 2nd charge.

3.Shortly afterwards, the defendant used another forged Bank of America VISA card to try purchasing an iPhone valued at HK$6,980, but the transaction was unsuccessful. This is the subject matter of the 3rd charge.

4.On seeing that, the defendant presented a forged GM card for the purchase and the transaction was successful. This is the subject matter of the 4th charge.

5.About an hour later, the defendant again used the forged GM card to purchase a bottle of wine valued at HK$6,980 from a shop in Central. The transaction was successful. This is the subject matter of the 5th charge.

6.Shortly afterwards, the defendant tried using the same GM card to purchase another bottle of wine. However, the staff failed to get the approval code after several attempts. This is the subject matter of the 6th charge.

7.In view of that, the defendant presented the forged Bank of America card for the purchase. However, the staff still failed to get the approval code and the defendant then gave up making that purchase and left. This is the subject matter of the 7th charge.

8.The defendant was intercepted by the police when he walked out of the wine shop. Under caution, he admitted that he was asked to use forged credit cards to purchase goods. In a subsequent video-recorded interview, the defendant said that he was recruited in mid-April 2010 by a male to do these purchases and to hand over the goods to the male after successful purchases. The defendant admitted having been paid slightly over HK$10,000 by the male.

9.The defendant further admitted that earlier on, he had tried using a forged credit card to purchase a mobile phone in Yuen Long. However, the transaction failed and the staff of the shop forfeited the card.

10.Following the defendant’s admission, enquiries were made and it was confirmed that on 28 April 2010 the defendant attempted to purchase a mobile phone valued at HK$5,398 from a shop in Yuen Long. The transaction failed and the card was forfeited by the staff of the shop. This is the subject matter of the 1st charge.

11.The defendant is now aged 24 and has a clear record. He is single and is the eldest son of the family. The defendant used to work as a salesman, earning about HK$20,000 per month. He contributed HK$2,500 to support his family and his younger brother who was still studying. He was, however, laid off in October 2009. Afterwards, he worked as a waiter, earning about HK$5,000, but he still made the same contribution to his family.

12.It was said that as the defendant intended to get married at the end of this year and out of momentary greed, he committed the present offences in respect of which he was promised a reward of HK$1,000 to HK$2,000 per day.

13.In mitigation, it was said on behalf of the defendant that he is truly remorseful, he was co-operative from the start and he made detailed confessions.

14.It was also urged on this court that the scale of the operation was small and that the financial loss actually caused to the shop was about HK$13,000.

15.For offences involving forged credit cards, the Court of Appeal in R v Chan Sui To and Another [1996] 2 HKCLR 128 set out a number of factors which a sentencing judge will need to consider in determining the appropriate sentence. These include the size of the operation, the planning involved, whether there was an international dimension, the role played by the defendant, whether there was a guilty plea, etc. It was said that the sum of money involved is only one of the factors to be taken into account and it is not even the most significant factor.

16.In HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517, the Court of Appeal further said that it was the potential for losses, rather than the actual loss, in relation to the fraudulent use of credit cards that was important in sentencing for this kind of offences.

17.In the present case, there were a total of three forged credit cards. The operation could be described as simple as, on each occasion, the defendant simply went to the shop, produced the forged card and tried making the purchase. Although the actual loss caused was about HK$13,000, I note that the defendant targeted expensive items like mobile phones and expensive wine which were in the value of a few thousands each. He also sought to make successive purchases within a short period of time. There is little doubt that if the defendant had not been arrested, he would have continued making the purchases and causing further losses to other shops or companies.

18.While, on the facts, the defendant did no more than presenting and using forged credit cards, it is these foot-soldiers and front men like the defendant who rendered forged credit card schemes feasible. The defendant admitted that in less than a month, he had already been given about HK$10,000 as reward.

19.In sentencing, I bear in mind all the above and that the court has repeatedly said that the integrity of the credit card system is highly important and must be protected and that severe sentences are called for as a deterrent. I also bear in mind the defendant’s background, his clear record, his plea and all the matters urged in mitigation on his behalf.

20.For Charges 2 to 7, I am going to adopt a starting point of 3 years for each charge. A one-third reduction will be given to the defendant for his pleas. He is therefore to serve a term of 2 years, that is 24 months, for each of those charges.

21.For Charge 1, I also adopt a starting point of 3 years. However, the offence was only discovered upon the defendant’s own confession and without which the police might not have any clue about it. I am therefore prepared to give further discount to the defendant in addition to the one-third for his plea, and the term I impose is one of 20 months after reduction.

22.Having considered the totality principle and all the relevant matters, I order that the sentences in respect of the 2nd to 7th charges are to be served wholly concurrently. However, 10 months of this 24-month term is to be served consecutively to the term of 20 months imposed in respect of Charge 1, making a total of 30 months’ imprisonment.

23.Defendant, stand up. You are therefore to serve a term of 30 months’ imprisonment.