HKSAR v. Choi Ka Keung

DCCC 1152/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1152 OF 2010

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Reasons for Sentence

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The Defendant has pleaded guilty to each of the ten charges that he faces, namely 6 counts of using a false instrument, contrary to Section 73 of the Crimes Ordinance, Cap. 200 (Charges 1-3, 7-8 &10), 1 count of possessing a false instrument, contrary to Section 76(1) of the Crimes Ordinance, Cap. 200 (Charge 4), 2 counts of obtaining property by deception, contrary to Section 17(1) of the Theft Ordinance, Cap. 210 (Charges 5-6), and 1 count of attempting to obtain property by deception, contrary to Section 17(1) of the Theft Ordinance, Cap. 200 and Section 159G of the Crimes Ordinance, Cap. 200 (Charge 9).

2.The offences all occurred within a very short period of time – between 14 June, 2010 to 23 July, 2010, and involved about 6 credit cards, some of which have not been seized.  Some of the shopping vouchers obtained by using the forged credit cards have also not been recovered.

3.Facts admitted by the Defendant disclosed that at about 2055 hours on 23 July, 2010, the Defendant entered the Wellcome Supermarket at G/fl., Central Mansion, Nos. 270-276 Queen’s Road, Central, Hong Kong.  He approached the cashier and asked to buy $1,000 worth of shopping vouchers.  He produced a blue coloured credit card to pay for the vouchers.  The cashier attempted to process the transaction but it was not accepted by the card reading machine.  The blue coloured credit card was returned to the Defendant.  He then produced a silver coloured credit card for payments which was also rejected by the card reading machine.  When notified of the rejection, the Defendant immediately asked for the silver coloured credit card and walked out of the supermarket (Charges 1 and 2).

4.Witnessing the failed transactions and feeling suspicious, the manager of the supermarket decided to alert the manager of a nearby branch at G/fl., Broadway Plaza, Nos. 2-12 Queen’s Road, West, Central, about what had happened and gave a description of the Defendant.

5.At about 2115 hours, the Defendant entered the Wellcome Supermarket at G/fl., Broadway Plaza, Nos. 2-12 Queen’s Road, West, Central and approached the cashier and asked to buy $500 worth of shopping vouchers.  The manager, who had been alerted by her colleague earlier, kept the Defendant under observation whilst making a report to the police.  The Defendant produced a blue coloured credit card to the cashier to pay for the shopping vouchers.  The transaction was successfully processed. The cashier gave the Defendant back the credit card together with $500 worth of shopping vouchers and a receipt (Charge 3).

6.Upon leaving the supermarket, the Defendant was intercepted by a police officer.  The Defendant was holding a Citibusiness Visa card bearing the name of Chan Ka Ki with the account number 4349 1207 2234 0310 (the Citibusiness credit card).  He was arrested and cautioned, and under caution he admitted that the Citibusiness credit card was forged and he had just used it to buy $500 worth of shopping vouchers inside the supermarket he had just come out of.

7.The Defendant was searched, and a Washington Mutual Visa card bearing the name Chan Ka Ki with the account number 4117 7640 0059 6992 was found inside his wallet.  Under caution, he admitted that this card was also his and claimed that the card had not been used by him (Charge 4).

8.20 Wellcome Supermarket shopping vouchers were found in the Defendant’s shoulder bag, with a total value of $2,000.  He admitted under caution that he had used the Citibusiness credit card to buy these 20 vouchers from a Wellcome Supermarket in Shamshuipo.

9.The Defendant’s home was searched and a further 20 Wellcome Supermarket shopping vouchers were found.

10.Subsequent police investigations revealed that the 40 Wellcome shopping vouchers found both on the Defendant and at his home had been purchased from 4 other Wellcome Supermarket branches.

11.Of the 20 Wellcome Supermarket shopping vouchers found at the Defendant’s home, 10 were purchased from the Wellcome Supermarket at G/fl., Nos. 39-41 To Kwa Wan Road, Kowloon at 1615 hours on 21 July, 2010.  On that occasion, the Defendant approached the cashier and requested to purchase 20 shopping vouchers worth $2,000 in total.  He produced a black credit card (a card with the account number ending in the numbers ‘1321’ and which has not been seized), to pay for the transaction, and the transaction was successfully completed.  Only 10 of the 20 shopping vouchers have been recovered (Charge 5).

12.The other 10 shopping vouchers found at the Defendant’s home were purchased from the Wellcome Supermarket at basement, Golden Centre, No. 94 Yen Chow Street, Shamshuipo.  At about 1740 hours on 22 July, 2010, the Defendant entered the supermarket in question and approached the cashier and requested to purchase 20 shopping vouchers worth $2,000 in total.  He paid for these with a credit card (a card with the account number ending in the numbers ‘5825’ and which has not been seized) and the transaction was successfully completed (Charge 6).  Only 10 of the vouchers were recovered.

13.Of the 20 shopping vouchers found on the Defendant’s person, 10 were purchased from the Wellcome Supermarket at Shop No. 4, LG floor, Lai Po Garden, No. 360 Shun Ning Road, Shamshuipo.  At about 1851 hours on 23 July, 2010, the Defendant entered the said supermarket and requested to purchase 20 shopping vouchers worth $2,000 in total from the cashier.  He produced the ‘Citubusiness’ card to pay and the transaction was successful.  Only 10 of the 20 shopping vouchers were eventually recovered (Charge 7).

14.The other 10 vouchers found on the Defendant’s person were purchased from Wellcome Supermarket, Shop No. 125, 1^st floor, Metro Harbour Plaza, No. 8 Fuk Lee Street, Tai Kok Tsui.  At about 1950 hours on 23 July, 2010, the Defendant entered the said supermarket and approached the cashier and requested to purchase 20 shopping vouchers worth $2,000 in total.  He paid for these with the ‘Citibusiness’ credit card.  The transaction was successful.  Only 10 of the 20 vouchers purchased were recovered (Charge 8).

15.Further police inquiries revealed that the Defendant was wanted for another similar matter.  At about 1705 hours on 14 June, 2010, the Defendant went to KCC Telecom Ltd. at Shop No. 207, level 2, Kowloon City Plaza, No. 128 Carpenter Road, Kowloon City, with another male.  The Defendant asked to buy 2 Nokia mobile phones, totally valued at $4,260, and produced a credit card for payment.  The card was not accepted by the card reading machine.  Suspecting it might be a forged credit card, the Defendant was asked to produce his Hong Kong identity card for identification purpose.  The Defendant produced it and it was confirmed that the name on both the credit card and the HK identity card produced were the same.  He was asked if he had any other card he could use to effect payment and produced a Bank of America credit card bearing his name with account number 4966 2300 3275 0686 to effect payment.  Again, the card reading machine could not process the transaction and showed a message ‘pick up this card’.  The shop owner decided to call the police.  The Defendant asked for the return of the credit card and his identity card, and when this was refused, he fled, leaving these behind (charges 9 & 10).

16.Forensic examination of the 3 credit cards seized, i.e. the Citibusiness card, the Washington Mutual card and the Bank of America card, disclosed that these were all forged, and CCTV footages from the 6 Wellcome Supermarket stores all captured the Defendant purchasing the shopping vouchers and making payment by cards.

17.Under caution, he admitted to using the Citibusiness and Washinton Mutual credit cards to attempt to purchase the shopping vouchers in respect of charges 1 and 2 – he had been given those cards by a friend called ‘Ah Wai’ after he had told the friend that he did not have enough money. He also admitted to using the ‘Citibusiness’ credit card to purchase the shopping vouchers in respect of charges 3, 7 and 8.  He admitted using two forged credit cards to purchase the shopping vouchers in respect of charges 5 and 6, which had been given to him by Ah Wai, but these cards were now lost.  In relation to charges 9 and 10, he said he had been given the two forged credit cards by a man named ‘Ah Wah’ earlier that day, and Ah Wah had accompanied him to the shop to make the purchases but left immediately upon knowing that the transactions were unsuccessful.

18.The Defendant is now aged 37 years.  I was told that he lives alone in Hong Kong.  He is divorced, with one daughter.  He used to work as the manager of a restaurant but lost his job last year, and had difficulty finding work thereafter.  He was supported by his wife, which has led to the break-up of his marriage.  He has not been able to see his wife and daughter and was upset and depressed, and spent time in games centre, where he was induced to earn some quick money by using forged credit cards.  He needed to pay for his daughter’s school fees.  It was submitted that he was remorseful, as reflected by his pleas, and he sought leniency.

19.His criminal record dates back to 1985, when he would have been 12 years old.  He has had 13 court appearances with 36 previous convictions, many of which are dishonesty related.  His most recent offence was in 2005, when he was sentenced to 1 month’s imprisonment, suspended for 18 months and fined $2,000 and ordered to pay compensation of $2,000 for an offence of assault occasioning actual bodily harm.

20.I have before me the Background Report of the Defendant, the contents of which I have considered. It sets out the background of the Defendant in detail.  I do not intend to rehearse the contents herein.  Suffice to say that it is clear that his addiction to dangerous drugs and gambling and his desire to earn easy money have all contributed to his being before the court today.  His daughter is presently living with her grandmother, and it would appear that the Defendant has played almost no role in her upbringing.

21.In HKSAR v. Tu I Lang, CACC 464/2006, the Court of Appeal referred to the decision of R. v. Chan Sui To [1996] 2 HKCLR 128 at 134 :

“8. It is true that in R. v. Chan Sui 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 that 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 five to six 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 point of sentences of three years’ imprisonment, where the operation involved can be fairly described as small scale.”

The Court further said :-

“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 linking the offender to a larger operation, then a starting point of three years’ imprisonment or less would be appropriate.”

22.Offences involving forged credit cards are all serious offences.  I need only to quote the judgment of Litton J.A. in R. v. Kwan Ying Ho, CACC 527/1992 that :-

“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.”

23.In HKSAR v. Cheung Ka Wo, Johnny, CACC 136/2001, Stuart Moore, V-P, in dismissing an appeal on similar charges as herein where a starting point of 3 years’ imprisonment was used, said :-

“11. It is well known that in this jurisdiction severe sentences are given to those who commit offences of the kind with which we are presently concerned as a deterrent to others who are like- minded. One justification for this is that the integrity of the credit card system is highly important in this day and age and the confidence which people, as Mr. Madigan pointed out in the course of his argument, are entitled to place on this aspect of modern commercial life is necessarily eroded by others who attempt to beat the system by fraudulent methods.”

24.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.  When he was arrested, he was in possession of two forged credit cards, neither of which were in his own name. In respect of charges 9 and 10, he had produced two forged credit cards for payment, both in his own name, one of which, the Bank of America credit card, was kept by the storekeeper when the Defendant left the shop upon the storekeeper disclosing his intention of reporting the failed transactions to the police.  Three other forged credit cards were used in respect of charges 5, 6 and 9, making a total of six forged credit cards that were involved in these 10 counts.  The value of the goods involved is not large.  However, it is the potential for loss which is the most important consideration.  While there is no evidence of syndication, the fact that two of the six 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.

25.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 into the shops to buy the goods, the whole point of the forgery fails.  So the people who used 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 herein did.

26.Here, the Defendant was successful on five occasions when he used the forged credit cards.  It was only because of the vigilance of the staff at the Wellcome Supermarket in charges 1 and 2 who were suspicious as a result of the two failed transactions and informed the police as well the staff of another nearby Wellcome Supermarket that the Defendant was subsequently intercepted outside that Wellcome Supermarket by the police.  Had he not been intercepted, the cards in my view would no doubt have been used elsewhere to obtain further goods.

27.The only mitigation of weight before me really are the Defendant’s pleas of guilty, which reflect his remorse.

28.On each of the charges, I take as a starting point three years’ imprisonment, discount this by one-third to reflect his pleas and sentence him to two years’ imprisonment on each charge.  These are all separate and distinct offences and warrant consecutive sentence.  However, these offences were committed within a short period of time.  I also bear in mind the totality principle of sentence.  I order that the sentences on all the charges run concurrently.