HKSAR v. Lee Ka Wing, Kelvin

DCCC811/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 811 OF 2010

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Reasons for Sentence

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1.The defendant has pleaded guilty to three counts, the 1st count of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Chapter 210; the 2nd count of using a false instrument, contrary to section 73 of the Crimes Ordinance, Chapter 200; and the 3rd count of possessing false instruments, contrary to section 75(1) of the Crimes Ordinance, Chapter 200. The offences all occurred on the same day, i.e. 5 May 2010.

2.Facts admitted by the defendant disclose that he had arrived in Hong Kong via the Lok Ma Chau Border Control Point at 1521 hours on 5 May 2010, the day of the offences.  At around 1630 hours the same day, he went to the Commercial Press Bookstore at Jordan Road and selected 3 books and some stationeries valued at $398.80 and also 30 book vouchers each valued at $100, totalling $3,000.  He presented a Capital One Platinum MasterCard bearing his name for payment.  The transaction was successful.  The defendant then left the shop with his purchases.  This is Charge 1.

3.At around 1700 hours, the same day, that is shortly afterwards, half an hour later, the defendant entered the Burberry Shop inside the Duty Free Shops Hong Kong Limited at Lippo Sun Plaza in Tsim Sha Tsui.  He selected 5 Burberry T-shirts totally valued at $6,050 and presented the same Capital One Platinum MasterCard bearing his name for payment.  Whilst waiting for approval for the transaction, the defendant took back the MasterCard and left the shop without any successful purchase.  This is Charge 2.

4.At 1732 hours, the same day, the defendant was intercepted by police officers on Canton Road in Tsim Sha Tsui.  Upon search, 3 suspected forged credit cards were found in his wallet, the Capital One Platinum MasterCard used in Counts 1 and 2, a GM VISA card and a citi MasterCard.  All the 3 forged credit cards bore the defendant’s name.

5.The defendant was arrested and cautioned, and under caution, he told the police he had a gambling debt of $20,000 and was using the forged credit card to repay his debt.  In a subsequent record of interview, he told the police under caution that he owed a gambling debt of $20,000 to a male called Chocolate in mainland China.  The defendant did not have the means to repay this debt.  Chocolate gave him the 3 forged credit cards in his name in mainland China two days prior to the offences. 

6.The defendant knew that these were forged credit cards.  Chocolate told the defendant to make purchases with the forged credit cards to reduce his debt.  He successfully used the card at Commercial Press Bookstore and handed over the purchased items to Chocolate outside the shop. In the Burberry Shop when he tried to use the same card, it was not accepted. He had not used the other cards.

7.The defendant has 4 previous convictions, 3 of which are related to dishonesty.  His most recent conviction was on 10 July 2008 when he was sentenced to 4 months’ imprisonment for an offence of managing a vice establishment. 

8.The defendant is now aged 28 years.  He was born in Hong Kong and educated to Form 4.  His parents divorced when he was 16 and he quit school and decided to work as a hairstylist.  The defendant lived with his mother after his parents divorced.  When he was 23, his mother remarried and moved to live in Australia.  The defendant himself is married.  His wife and 4-month-old baby live in China.  Prior to his arrest, he was a free-lance hairstylist and earned about $7,000 a month.  He was the sole breadwinner of his family and I am told that he committed the present offences because he wanted to settle his gambling debts before the birth of his baby.

9.The defendant has written a letter of mitigation expressing his remorse and seeking leniency.  A letter from the defendant’s father, aged 70, to the defendant was also handed up, and I have considered the contents of both.  Both of the defendant’s parents are now in court today to show their support to the defendant.

10.I have before me also the background report, the contents of which I have considered.  It sets out the background of the defendant in detail and I do not intend to rehearse the contents herein. 

11.In HKSAR v Tu I Lang CACC464/2006, the Court of Appeal referred to the decision of R v Chan Siu To [1996] 2 HKCLR 128 at page 134, and I quote from paragraph 8 of the judgment:

“It is true that in R v Chan Siu To [1996] 2 HKCLR 128 at 134, this court said in dealing with the range of sentences imposed for credit card offences in various cases cited to it: ‘Allowing for the different facts and the varying degrees of culpability, it is impossible to formulate a set of principles of sentencing from those decisions. We think however it would be helpful to the courts if they were guided by some criterion. We would therefore suggest that an accused who plays an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension. should receive a sentence of 5 to 6 years after trial. Sentences may be adjusted upwards or downwards according to the circumstances.’ It is equally true that in a number of other cases involving the simple possession or use of a small number of credit cards, this court has approved starting points of sentences of 3 years’ imprisonment, where the operation involved can be described as small scale.”

12.The Court of Appeal further said in paragraph 10 of that judgment:

“Where the facts of the offence point to a small unsophisticated operation, involving only one or a few forged credit cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate.”

13.Offences involving forged credit cards are all serious offences.  I need only to quote from the judgment of Litton JA in R v Kwan Ying Ho in CACC527/1992 where he said:

“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 the Hong Kong’s standing in the international community.”

14.For the purpose of sentence, I am prepared to accept the account given to the police by the defendant.  It follows that he was not part of a syndicate involved in using forged credit cards to obtain goods, nor is this a case involving an international dimension.  He was in possession of 3 forged credit cards, the value of goods involved is not large. However, it is the potential for loss which is the most important consideration.

15.Whilst there is no evidence of syndication, the fact that all 3 forged credit cards were in the defendant’s name shows that it was a deliberate plan from the outset and using his own name would reinforce the credibility of the forged credit cards.  There is no evidence of use of two of the three cards, but I am sure he would have used it but for his arrest.

16.The defendant may have been a mere cog in this operation.  However, the people who go into the shops to make the purchases are the vital cogs.  Without these persons being prepared to go to the shops to buy the goods, the whole point of the forgery fails.  So the people who use forged credit cards in this way have got to be deterred and because of that the court takes a very serious view of people who do what the defendant here did.

17.Here the defendant was successful the first time. It was only because of the delay whilst approval was awaited that the defendant left without completing the second purchase.  Had he successfully practised the second deception, the cards, in my view, would no doubt have been used elsewhere to obtain further goods.

18.The greatest mitigation of weight before me today is the defendant’s pleas of guilty.  In respect of each charge, I take as a starting point 3 years’ imprisonment.  The defendant has pleaded guilty and he is entitled to the usual discount of one-third to reflect those pleas. 

19.On each charge, the defendant is sentenced to 2 years’ imprisonment. 

20.I have also considered totality.  The offences each took place within a very short period of time.  I take the view that the sentences should run concurrently.  The total period of imprisonment will be one of 2 years’ imprisonment.