HKSAR v. Shiu Wai Kwok

DCCC 24/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 24 OF 2011

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Reasons for Sentence

1.The Defendant has pleaded guilty to the charges that he faces, namely 1 count of using a false instrument, contrary to Section 73 of the Crimes Ordinance, Cap. 200 and 1 count of possessing false instruments, contrary to Section 75(1) of the Crimes Ordinance, Cap. 200.

2.The offences occurred within a very short period of time – between 14September 2010 and 15October 2010 and involved 3 credit cards.

3.Facts admitted by the Defendant disclosed that at about 1600 hours on 14 September 2010, the Defendant and an unknown female visited the Cheuk Ying Jewellery & Watch Company on Nathan Road in Kowloon. He purchased a ring, valued at HK$16,800, and presented a Citibank Visa card in his own name (E1) to the saleslady for payment.  She passed the credit card to her supervisor to process the transaction.  However, the transaction failed.  Their suspicion being aroused, the Defendant was asked for his identity card.  The Defendant produced his identity card, which bore the same name as that which appeared on the credit card.  As they doubted the authenticity of the card, a report was made to the police.  The Defendant became agitated and asked for his identity card.  When the staff at the shop refused to return it and insisted he wait for the police to arrive, the Defendant left the shop, leaving behind his identity card and the ring (Charge 1).  On 15 October 2010, at about 2000 hours, Wan Yuen-yi found a wallet on the rear passenger seat of a taxi she was travelling in.  In the wallet, there was a home visit permit and the 2 credit cards (E2-3) as set out in the particulars of charge 2, all in the name of the Defendant.  She reported the matter to the police (Charge 2).  The Defendant was subsequently located and arrested and cautioned.  He admitted he had used E1 on 14 September 2010, and that he had left his wallet containing E2-3 on the taxi he had been travelling in on 15 October 2010, shortly before Ms. Wan boarded the same taxi.  Upon forensic examination, the three credit cards were confirmed to be forged.

4.The Defendant is now aged 37 years.  I was told that he lives alone in Hong Kong.  He is married, but separated from his wife a long time ago and he has no idea of her whereabouts.  After his discharge from the DATC in 2007, he went to live and work in Macau and only returned to Hong Kong in early 2010.  In Macau, he accompanied people to the casinos for gambling, and received a small cut from the amounts that they gambled – his income was unsteady, about HK$10,000 a month.  On returning to Hong Kong, he worked as a supervisor in a nightclub, then as a casual transport worker earning HK$300 a day, but his income was unstable.  He tried to apply for CSSA but was refused.  His parents and sister live in Hong Kong, and his mother had an operation in September 2010.  He has a son, now aged 7 years, from a previous relationship - the boy is a Primary 2 student, and cared for by his mother.  Occasionally, the boy’s mother would take him to see the Defendant’s parents, and they would inform the Defendant, and he would go and see his son. As the Defendant’s mother had had a major operation just before the first offence was committed, the Defendant said he wanted to buy tonic food for his mother to enhance her health and to buy school books for his son – he wanted to earn some quick money by using the forged credit cards to buy high value items and then sell them for cash.

5.His criminal record dates back to 1993 - 10 court appearances with 21 previous convictions, many of which are dishonesty related.  His most recent offence was in 2010, when he was sentenced to 8 months’ imprisonment on 10 November 2010, in STCC5714/10, for an offence of conspiracy to deal with property known or believed to represent proceeds of an indictable offence.  He is presently serving that term of imprisonment.  I noted from Part B of the criminal record that the Defendant had failed to answer police bail in respect of STCC 5714/2010 – that he had jumped police bail between 8 October 2010 and 25 October 2010, but it was not clear whether he had been dealt with in respect of that.  I have asked for the file of STCC 5714/2010 to be available and I have viewed it – I am informed by Prosecuting Counsel that the Court did not take any action against the Defendant for that, nor did the Prosecution ask the Court to do so, and that the Defendant had surrendered himself to the police in respect of that offence.  What is clear is that Count 2 herein was committed whilst he was on police bail in respect of STCC 5714/2010.  I note from the Background Report that he was arrested for that offence in March 2010 so he committed count 1 also while he was on police bail.

6.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 loose life style in the past have all contributed to his being before the court today.  His son is presently living with the Defendant’s previous girlfriend, and it would appear that the Defendant has played almost no role in his upbringing.

7.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.”

8.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.”

9.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.”

10.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.  All the forged credit cards the subject matter of the two charges before me were in the Defendant’s own name.  While there is no evidence of syndication, the fact that the 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. Although the value of the goods involved in count 1 is not large, it is the potential for loss which is the most important consideration.

11.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 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 herein did.

12.It was only because of the vigilance of the staff at the jewellery shop in count 1 who were suspicious as a result of the failed transaction and asked the Defendant for his identity card, and held on to his identity card to await the arrival of the police that the Defendant became agitated and left the shop.  Had he not been intercepted, the card in my view would no doubt have been used elsewhere to obtain further goods.  According to what he told the interviewing probation officer, he bought two more forged credit cards after the first one was seized by the staff in the shop.

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

14.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 order that the sentences on all the charges run concurrently. He is currently serving a term of 8 months’ imprisonment imposed on 10 November 2010.  He was arrested for that offence in March 2010, and was on police bail when he committed the present offences.  I do view that as an aggravating factor.  I have considered the totality principle of sentence, but in my view, the present sentences should be served consecutively to the term he is currently serving, and I so order.