HKSAR v. Tsui Wai Lam

DCCC 253/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 253 OF 2011

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Reasons for Sentence

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Charges

1.The Defendant used 1 forged credit card (Charge 1) and possessed 2 other forged credit cards (Charge 2). 

2.In Fortress shop, he presented a credit card to purchase a notebook computer without asking about how it worked.  The shopkeeper felt suspicious and informed his manager in secret. The Defendant suddenly left the shop without retrieving the credit card.  The security guard managed to catch him.  The police found 2 other credit cards on his body.  All 3 credit cards, issued in his name, were confirmed to be forged.

Defendant’s personal circumstances and mitigation

3.He was 17 on the date of offence and is still 17 today.  After quitting school at F.4, he failed to keep a stable job.  As a fireman, his father runs shifts and affords little regular time or supervision of him.  His mother had divorced with his father and left home since his tender years.  He has received 2 cautions by police superintendant for criminal damage in 2008 and dishonest access to computer in 2009 respectively.  I have received mitigation letters commending his good character but apparently his family members have nothing concrete to offer in helping him back onto the right track.  The Training Centre Report recommends a detention in the Training Centre.   

Sentencing principles

Customary sentence for credit card fraudsters

4.There are no sentencing tariffs but the customary sentence is jail.  In HKSAR v Cheung Ka-wo CACC 136/2001 Stock JA 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 … 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.”

Determining the length of imprisonment

5.In HKSAR v Cheng Sui-to [1996] 2 HKCLR 128, 131 Yang CJ in the Court of Appeal stated that a sentencing judge would need to consider at least the following 5 factors before deciding the level of sentence: 

Sentencing young offenders in general

6.Section 109A of the Criminal Procedure Ordinance, Cap. 221, provides:

“(1) No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

(1A) This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by Schedule 3.”

Using or possessing false instruments is not an excepted offence by Schedule 3. Imprisonment has to defer to other options.

Examples of sentences

7.In HKSAR v Watt Siu-hung CACC 93/2001, the value of the goods obtained on the two forged credit cards was slightly in excess of $3,000.  The sentencing judge took a starting point of three years for these offences which Mayo VP in the Court of Appeal said was on the high side but was not manifestly excessive.  The court also commented that:

“There was every reason to believe that but for his arrest he would have continued to use the credit cards.”

8.In HKSAR v Kita Yashushi & Anor CACC 470/2006, each of the two applicants pleaded guilty to the charges of using a false credit card to purchase a Rolex watch (the charge of using a false instrument), which purchase was verified by a false passport (the charge of using a false passport), and possessing 3 false credit cards and the false passport.  The Court of Appeal regarded that the starting points should have been:

(1) 3½ years for using the false credit card;

(2) 1½ years for using the false passport; and

(3) 3½ years for possessing the 3 credit cards and the false passport.

Taking in account the pleas of guilty, the sentences became 28 months, 12 months, and 28 months respectively. The 28 months’ sentences were concurrent but 4 months of the 12 months’ sentence was consecutive to the 28 months. Each received an overall sentence of 32 months.

9.In 香港特別行政區訴陳麗婷 CACC 130/2007, the applicant was in possession of 2 false credit cards when the police raided a room in a Chinese restaurant in Mongkok.  The Court of Appeal approved a starting point of 3 years on the basis that the cards bore numbers issued by a Korean finance company and a Spanish bank respectively, thereby illustrating an international dimension. 

Sentencing this Defendant

10.For an adult offender, I would have taken 3 years as the starting point for each charge.  Unless speaking in very broad terms, the 2 charges are not part and parcel of a single transaction.  Given the pleas of guilty, the sentences ought to have been 2 years each.  Totality will suggest significantly concurrent sentences.

11.As imprisonment is only a deferred option for non-excepted offences, I have to consider first the Training Centre.  I am satisfied that it is in the best interest of the community and him to undergo training there.  This is the order I make for both charges.