HKSAR v. Chua Eng Hoe

DCCC1254/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1254 OF 2010

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Reasons for Sentence

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1.The Defendant pleaded guilty before me to two charges of “using a false instrument”, contrary to section 73 of the Crimes Ordinance, Cap. 200. The false instruments referred to in the charges are forged credit cards and a total of 3 cards were involved.

2.The Summary of Facts, which the Defendant admitted, revealed that the Defendant was a Malaysian visitor who entered Hong Kong from Lo Wu in the afternoon of 31 August 2010. That night, at about 8:00 p.m., he went to a shop on Canton Road, Tsim Sha Tsui, Kowloon to make a purchase of cosmetic products valued at HK$3,570. At the time, the Defendant used a forged Bank of America VISA card in the name of LEE WEI HAN for making payment. The transaction was successfully completed and the Defendant left afterwards. This is the subject matter of charge (1).

3.About an hour later, the Defendant entered a shop at Sai Yeung Choi Street South, Mong Kok, Kowloon to purchase a notebook computer valued at HK$11,980. The Defendant again presented the Bank of America VISA card for payment but the transaction was unsuccessful. Therefore, he used two other forged credit cards, that is, a CitiBusiness MasterCard and a CapitalOne MasterCard, both in the name of LEE WEI HAN, for making payment. However, both cards were not accepted. This is the subject matter of charge (2).

4.Feeling suspicious, the staff of the shop made a report to the patrolling police officers. When the Defendant was intercepted and cautioned, he said that he had attempted to use the cards to buy the computer for reselling purposes. He also admitted that, earlier on, he succeeded in buying some cosmetic products by using the Bank of America VISA card and he intended to resell those products as well.

5.During a subsequent video-recorded interview, the Defendant claimed that he had picked up all the three cards from a street in Shenzhen on 30 August 2010. He then entered Hong Kong from Lo Wu and went to Tsim Sha Tsui and Mong Kok for shopping.

6.The Defendant is now aged 42 and he has a clear record in Hong Kong. He is single and he lived with his 70-year old mother in Malaysia. Since 2000, the Defendant had been running a grocery shop in the building where he lived and he used to earn about HK$8,000 each month, contributing HK$2,000 to support his mother. However, as the business was not good, he closed down the shop 6 months prior to his arrest and he then went to Shenzhen to look for business opportunities.

7.In mitigation, it was said that one of the Defendant’s elder brothers had a heart problem some years ago and, since then, his brother could not take up strenuous work. As a result, the Defendant did not only support his aged mother but also his elder brother’s family. Today, a letter written by the Defendant’s nephew was provided to the court, the contents of which largely referred to this benevolent act of the Defendant. It was urged upon this court that a lenient sentence be passed as the Defendant is truly remorseful and was co-operative from the start.

8.For offences involving forged credit cards, the Court of Appeal in R v Chan Sui-to & 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, and whether there was a guilty plea. 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.

9.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.

10.In the present case, there were a total of 3 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. I also note that the cards were relatively poorly made and it was admitted in the facts that there were spelling mistakes thereon. Therefore, I am going to sentence the Defendant on the basis of this case being a small-scale credit card fraud.

11.However, while the actual loss caused to the first shop was just a few thousand dollars, I note that the Defendant, within just an hour, then went to the second shop and, probably emboldened by his first successful attempt, tried to buy a much more expensive item this time, that is, a notebook computer which was worth about HK$12,000.

12.In other words, within hours after his arrival in Hong Kong, the Defendant tried to make successive purchases by using the forged cards. I therefore have no 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.

13.Now, although the Defendant claimed that he merely picked up those forged cards from a street in Shenzhen, it remains a fact that he deliberately came to Hong Kong to make purchases by using those forged cards. On the facts which the Defendant admitted, he started making the purchases within hours after he had entered Hong Kong. It is therefore clear that he entered Hong Kong in his visitor’s status, not for any other purposes but merely for the commission of these offences. I regard this as an aggravating factor. 

14.In sentencing, I bear in mind all the above. In particular, the Court has repeatedly said that the integrity of the credit card system is highly important and must be protected by passing deterrent sentences for this type of offences.

15.I also bear in mind the Defendant’s background, his clear record, his pleas, and all the matters urged in mitigation on his behalf. I accept that the Defendant tried his best to look after his family and that his imprisonment would mean an end to the assistance and support he had been providing to his mother and his elder brother. Although the court is sympathetic about the Defendant’s plight, that could not be a valid mitigating factor for he should have thought about these consequences before committing the present offences.     

16.For both charges, I am going to adopt a starting point of 39 months each. A one-third reduction will be given to the Defendant for his pleas. He is therefore to serve a term of 26 months for each of those charges.

17.Having considered the totality principle, I order that the sentences in respect of these two charges are to be served wholly concurrently, making a total of 26 months’ imprisonment.