HKSAR v. To Kit Yan

DCCC1248/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1248 OF 2010

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Reasons for Sentence

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The Charge

1.The defendant was charged with and pleaded guilty to a count of “Using a false instrument” under section 73 of the Crimes Ordinance, Chapter 200.

The Facts

2.The facts of the case are summarised as follows.  Mr Lam, PW1, is the proprietor of Charming Jewellery & Watch Company situated Shop NO. 17A, G/F, Alhambra Building at 383 Nathan Road (“the shop”).  Around 3.33 pm on 29 May 2010, the defendant entered this shop and selected one diamond ring (valued at HK$40,570) and one pair of diamond earrings (valued at HK$11,980) for purchase.  The defendant then presented a Washington Mutual Visa Card No. 4388540015965485 in her name for payment.  The CCTV of the Shop captured the scene.

3.As the amount of payment was substantial, PW1 asked for the defendant’s identity card for verification, and the defendant did so accordingly.  PW1 intended to call the card centre to get an authorisation code in order to proceed with the payment.  The defendant became very nervous and wanted her credit card back.  Feeling suspicious, PW1 refused and told the defendant that her credit card was a forged one.  The defendant immediately fled from the shop and leaving behind her identity card and the said credit card.  The card centre and the government chemist later confirmed the said credit card to be forged.

4.On 3 September 2010, the defendant surrendered herself to the Kowloon City Police Station.  Under caution, the defendant admitted the offence and stated the followings:

(1) She owed money to a male named Ah Shun who then made a forged credit card according to her personal details;

(2) the defendant was given the said forged credit card and was asked to make purchase with it and was promised to have 10 per cent commission in return; and

(3) at the material time of the purchase, the staff had found the card was forged, the defendant then left the forged card and her identity card at the shop and fled.

The Defendant’s Background and Mitigation

5.The defendant, aged 34, was unemployed.  She was a CSSA recipient and has six conviction records, which were all related to offences of dishonesty.  On the last occasion in August 2004, she was convicted of 15 charges of theft and was sentenced to 10 months’ imprisonment in the magistrates’ court.  She had been sent to the DATC for treatment and eventually to prison as punishment for her misdeeds.  Sadly, she failed to mend her criminal behaviour.  Eventually, due to financial reasons, she committed the present offence which was of a more serious nature in comparison with the previous convictions.

Authorities

6.The Court of Appeal in R v Chan Sui To & Another CACC 115/1996 said that:

“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 HK$50,000 and HK$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.”

7.The Court of Appeal further held that:

“In ascertaining the sentence for credit card frauds, a sentencing judge will need to consider various factors, including: (a) the size of the operation, for example, whether it involved large sums of money, whether it concerned a large number of persons or forged credit cards; (b) the planning that had gone into perpetrating the fraud, whether it was elaborate or simple, whether technical skills were used and to what extent; (c) whether there was an international dimension; (d) whether the accused played a major role, for example, running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he was a “mere cog in the wheel” as a courier or a custodian or keeper; and (e) whether there was a plea of guilty. These factors are, however, not intended to be exhaustive.“

8.From time to time, the Court of Appeal has emphasised in cases involving fraudulent use of credit cards that:

“The amount proved to have been lost by the fraudulent use of credit cards was not an important factor to be taken into account in sentencing for this kind of offences. It was the potential for losses which was the most important consideration”. See HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517 and Chan Sui To(Above).

9.Hence, severe sentences are called for as a deterrent to others who may be tempted to beat the integrity of the credit card system by fraudulent methods.

10.The Court of Appeal in HKSAR v Tu I Lang (杜壹朗) CACC 464/2006 expressed and held that:

“8. ...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 fairly described as small-scale.

9. In HKSAR v Lau Pui Hang (unreported) CACC 393/ 2003, this court differently constituted concluded that in circumstances such as those before it where only two credit cards were involved and the operation could be described as relatively small-scale falling below “the medium-sized operation” described in Chan Sui To, a starting point of 3 years’ imprisonment was appropriate: see also HKSAR v Watt Siu Hung CACC 93/ 2001 where the offences concerned the use of two forged credit cards and the court accepted it was “a relatively” minor credit card fraud case,” that case

being approved in HKSAR v Cheung Ka Wo Johnny. Small‑scale credit card offences cannot be subjected to strict guidelines. This is because the facts of such offences can vary significantly in a number of ways, the number of cards possessed or used being perhaps the most obvious factor.

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

Court’s observations

11.In the present case, the defendant took an active role in the scam.  The said credit card was deliberately made in her name and according to her personal details.  It was a small-sized credit card fraud with no international dimensions but cannot be classified as unsophisticated operation.  The defendant had made use of one forged credit card to purchase jewellery worth about HK$52,000.  As the defendant realised that the staff of the shop had suspected the authenticity of the forged credit card, she fled the shop in a hurry, leaving behind her own identity card.  She must have also realised very soon that her identity was unveiled and exposed.  Eventually, she turned herself in three months later on 3 September 2010.

Sentencing

12.Having considered all the circumstances of the case, including the background of the defendant and of the case, mitigation advanced by her solicitor, her plea, the relevant authorities and the overall criminality of the defendant, this court considers a starting point of 3 years’ imprisonment is appropriate.  Such sentence will be reduced for her guilty plea to 2 years’ imprisonment.

13.This court is prepared to reduce the sentence for a further 2 months for the defendant’s surrendering to the police and co-operation with the police in their investigation.  It is now ordered that the defendant has to serve a term of 22 months’ imprisonment.