HKSAR v. Yuen Ka Lee

DCCC57/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 57 OF 2011

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Reasons for Sentence

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The Charge and the Facts

1.The Defendant pleaded guilty before me to one charge of “using a false instrument”, and one charge of “possessing a false instrument”, contrary to sections 73 and 75(1) of the Crimes Ordinance, Cap. 200, respectively.

2.The false instruments involved were two forged credit cards.

3.The Summary of Facts, which the Defendant admitted, disclosed that in the afternoon of 27 October 2010, the Defendant tried to purchase a mobile phone valued at about HK$4,500 from a shop by using a forged Bank of America Visa Card. As the quality of the card was poor, the shop-assistant suspected that it was a forged card and called the police. When the Defendant became aware that the police had been called, she tried to leave the shop but was chased and stopped.

4.When the police arrived, a search was conducted and another forged Visa Card was found inside the Defendant’s purse. Both cards bore the name of the Defendant.

Mitigation

5.The Defendant is now aged 23 and has a clear record. She is single and is the eldest daughter of the family. She was educated up to Form 3 level. Afterwards, she had worked in various jobs, including a garage apprentice, decoration apprentice, bar tender, cashier and senior assistant of fast food shops as well as a cleaner. Since the Defendant has started working, she moved out from her family and, at present, she lives in a rented unit with a friend.

6.In mitigation, much emphasis was laid on the vulnerability of the Defendant as she was young and ignorant and was being targeted by others to commit the present offences. It was said that the Defendant was simply looking for a job at that time and she then provided her personal particulars and a copy of her identity card to a male who was introduced to her by her younger brother. On the day in question, the Defendant, it was said, boarded a car and was driven by that male and another male to buy a new mobile phone so that she could start work. She was then given the two credit cards in question. At that juncture, the Defendant realized that those were forged credit cards but she was then “pressurized” into committing the present offences. Miss Wong acting for the Defendant confirmed that she was not referring to any duress but only that the Defendant had little option at the time.

7.Miss Wong also emphasized that the Defendant is truly remorseful and has been co-operative with the police. It was also urged upon the court that the scale of the operation was small, the Defendant did not receive any reward, and no loss was caused to the shop.

8.Although Miss Wong asked for a background report and a CSO report to be prepared, I do not consider those necessary. Miss Wong has, in her written submissions, provided detailed information on the Defendant starting from her birth to how it was said she came to have committed the present offences and on all relevant matters. Insofar as a CSO report is concerned, I do not consider it appropriate to make such an order given the nature of the present offences, the relevant sentencing considerations, and the facts of this case.

Sentencing Considerations

9.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, etc. 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.

10.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.

11.In the present case, there were a total of 2 forged credit cards. The operation was simple. The Defendant simply went to the shop, produced the forged card, and tried making the purchase. Although the Defendant claimed that she was being pressurized at the time, given that she has had working experience for a number of years and has been living apart from home independently since she started working, I do not believe that she would be so naïve to simply follow the instructions given by strangers and not to seek any assistance when she was inside the shop. There was also no reason why the Defendant would need to put the other forged credit card inside her purse if she was not a consenting party. However, even if the Defendant’s account of events were to be accepted, she was fully aware that she had with her two forged credit cards at the time, and the Defendant was the one, not anybody else, who sought to purchase the mobile phone which was worth a few thousand dollars.

12.In sentencing, I bear in mind all the above and that the Court has repeatedly said that the integrity of the credit card system is highly important and must be protected and that severe sentences are called for as a deterrent. I also bear in mind the Defendant’s background, her clear record, her pleas, her co-operation with the police and all the matters urged in mitigation on her behalf.

The Sentence

13.I accept that the present case was a small-scale operation, therefore, for each of these two charges, I am going to adopt a starting point of 3 years. A one-third reduction will be given to the Defendant for her pleas. Other than that, I do not see any other powerful mitigating factors which would warrant any further reduction in sentence. The Defendant is therefore to serve a term of 2 years for each charge.

14.Having considered the totality principle and all the relevant matters, I order that the sentences in respect of these charges are to be served wholly concurrently, making a total term of 2 years’ imprisonment.