HKSAR v. Au Kai Lun

DCCC824/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.824 OF 2010

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Reasons for Sentence

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The defendant was charged with 3 counts of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap.200

The defendant pleaded guilty and admitted the facts, he was convicted accordingly.

Facts

On 1^st February, 2010 at about 1711 hours the defendant purchased 1 unit of Samsung LCD TV priced HK$6,480 with a forged Citibank VISA card with the defendant’s name, bearing the same number of a genuine Citibank VISA card, the owner was not the defendant.

On the next day at about 1658 hours, the defendant with an unknown male purchased 6 units of Olevia LCD TV total price was HK$18,494 at the same shop with another forged Citibank VISA card with the defendant’s name, bearing the same number of a genuine Citibank VISA card. After the transaction was approved, Citibank personnel contacted the genuine card holder and discovered the genuine card holder did not make the purchase.

Later at about 1722 hours, while the shop was arranging the delivery of the Olevia LCD TV, the defendant indicated he wanted to purchase another 8 units of TV total price was HK$9,791 with the same forged Citibank VISA card he used about 30 minutes ago. The transaction was rejected.

The shop was alerted of the crime at about 1730 hours, and arranged to stop the delivery of the Olevia LCD TV. The defendant and the unknown male fled immediately but the defendant was subdued by the shop personnel after a brief chase. A report was made to the police and the defendant was arrested.

In HKSAR v Ng Swee Thiam & Others [2000] 1 HKLRD 772, the Court of Appeal said at 778B-D:

“The question of amount of losses which may be proved may pale into insignificance when consideration is given to the potential for losses in the future.

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It is this potential for losses, which is the most important consideration. It may well be the case that it is not a simple matter to lay down any hard and fast rule of thumb in determining the appropriate sentences in individual cases.”

In HKSAR v Cheng Sui Yin CACC 468/2005 the Court of Appeal repeated that “credit card frauds are indeed very serious offences as observed by Litton JA (as he then was) in R v Kwan Ying Ho (unrep Crim App No.527 of 1992), “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.”

Return to the present case, 2 forged credit cards were involved, on the first occasion, the defendant acted on his own, on the next two occasions he was accompanied with another person. The total sum of the three transactions was over $34000 while the actual loss was $6480. I consider the appropriate starting point for each charge to be 3 years imprisonment.

Mitigation

The defendant aged 22, with 5 previous convictions, 2 related to dishonesty, and he was last convicted for wounding and sentenced to prison in September 2008 for 9 months.  He lives with his parents and one elder sister.  He has been a kitchen assistant after his last release from prison but was unemployed at time of the offence.  Parents are in court to show their support.

The defendant is entitled to 1/3 discount for his plea, and I do not consider there to be any mitigating factors call for further deduction.  However, taking into account of the totality consideration, I order the sentence on all the charges to run concurrently.

Order

Charge 1 sentenced to 2 years imprisonment

Charge 2 sentenced to 2 years imprisonment

Charge 3 sentenced to 2 years imprisonment

all to run concurrently, making a total of 2 years.