HKSAR v. Yu Kam Ho

DCCC 65 & 235/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 65 & 235 OF 2011

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Reasons for Sentence

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Charges and facts

1.The Defendant used a false credit card in his own name to buy a notebook computer, which cost $12,488 at a shop in Causeway Bay (Card 1, Charge 1 – using a false instrument).  The shopkeeper found the card suspicious.  He fled without retrieving the card.  He was stopped by the shop staff and arrested by the police.  He possessed another false credit card in his own name (Card 2, Charge 2 – possessing a false instrument).  Under caution he admitted both cards were false.  He bought them from an unknown person in an internet café at $5,000 five days ago. 

2.More than 1 month later and whilst on court bail, he used a false credit card in the name of HUGO CHEN to buy the same model of notebook computer at a shop in Tsim Sha Tsui (Card 3, Charge 3 – using a false instrument).  The shopkeeper found the card suspicious and called the police.  He was arrested by the police in the shop.  He possessed another false credit card in the name of HUGO CHEN (Card 4, Charge 4 – possessing a false instrument). 

3.The offence of using or possessing a false instrument each carries a maximum penalty of 14 years’ imprisonment on indictment.   

Personal background and mitigation

4.He is 24 years old.  He has a clear record.  He is educated up to F. 3 level.  He has been a plumber and then a decoration worker.  His father is a caretaker and his mother a housewife. He has a heavy family burden.  

5.His solicitor accepts that committing further offences of the same nature is an aggravating factor in sentence. 

6.As regards his role in the case, I am informed that he had bought the 4 cards, each at $2,500, on his own account from a friend.  This means he did not work for any syndicate.   As this is a quite a novel point which, if accepted, has the effect of reducing his sentence, I conduct a Newton Hearing to determine whether he was using or possessing the cards on his own account or for a syndicate.  

Newton Hearing

7.The defence calls him and no other witnesses.  His mitigating letter is prayed in aid and marked Exh. M1.  It stated he was indebted in the sum of $60,000 to friends and finance companies.  He had to repay as soon as possible.  A friend in the name of Ah Chun, whom he had met a few times before, enquired if he was interested in buying false credit cards.  He had never had any credit cards before.  He at first refused but later agreed.  He paid Ah Chun $5,000 for Cards 1 and 2.  Ah Chun gave no guarantee.  Although Card 1 failed to effect any transaction, Ah Chun refused to refund.  As he had no other channel to get false credit cards, he paid Ah Chun another $5,000 to buy Cards 3 and 4.  This time Ah Chun had guaranteed success and promised to refund.

8.In both instances, he was trying to buy the same model of computer notebook because he knew from the internet that it was a popular model, which portended ease of resale. 

9.I do not believe his evidence of buying the 4 cards from this Ah Chun or on his own account at all. The prosecution case as accepted by him in his pleas supports the irresistible inference that he was using or possessing the cards for a syndicate.   

Sentencing principles

Sentencing examples

10.There are no sentencing guidelines.  The customary sentence is imprisonment. 

11.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.”

12.In HKSAR v Yim Wai Ling, William CACC 35/2004, the applicant had 2 false credit cards in another person’s name (“Cards 1 and 2”).  He tried to buy a notebook computer at the same shop with the 2 cards but failed each time (Charges 1 and 2).  He tried to buy a digital camera and a charger with Card 1 and failed again (Charge 3). The police came to arrest him.  He had a genuine identity card in the name of that other person (Charge 4).  A month later and whilst on court bail, a routine street search on him yielded a false credit card in his own name (Charge 5).  The sentencing judge adopted a starting point of 30 months on Charges 1 – 3, 18 months on Charges 4 and 5 each.  Partly consecutive sentences were passed.  The overall sentence was 38 months on a plea.  The Court of Appeal approved the starting points but reduced the overall sentence to 30 months.  The applicant received an extra 6 months, as partly consecutive sentence, for the last offence committed whilst on bail for prior offences.  

13.In HKSAR v Fong Chun Hei, Ernie CACC 179/2006, the applicant possessed 2 false credit cards and had used one of the cards to buy a mobile phone.  The respective starting points were 30 months and 21 months.  Later, whilst on bail for the first encounter, he tried to buy a Louis Vuitton handbag with a false credit card.  The transaction could not be completed.  He returned with another false credit card.  The police came to the shop and arrested him with still 2 other false credit cards in his bag.  The respective starting points were 24 months, 24 months, and 36 months.  Later, whilst on bail for the first and the second encounters, he successfully used a false credit card to buy an Omega watch.  The supervisor watched the CCTV and somehow felt suspicious.  The police came to the shop and arrested him.  He had another false credit card in his wallet.  The respective starting points were 30 months and 36 months.  The overall sentence was 62 months.  The Court of Appeal regarded the proper overall starting point to be 6 years. 

14.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) 18 months for using the false passport; and

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

15.Taking in account the pleas of guilty, the sentences became 28 months, 12 months, and 28 months respectively. The 28 months’ sentences were to run concurrently but 4 months of the 12 months’ sentence was to run consecutively to the other charges.  Each applicant was sentenced to 32 months in total.

Committing an offence whilst on bail for another offence

16.In HKSAR v Yuen Gang-shing Cr App 303/ 1997, the sentencing judge adopted a starting point of 7 years’ imprisonment on the ground that the 1 year on top of the 6 years was due to the Applicant’s having committed the offence whilst he was on bail.  In upholding the sentence, Liu JA said in para. 5 of the Judgment:

“Commission of any offence whilst on bail is unquestionably an aggravating factor to be taken into account as did the Deputy Judge.”

17.In HKSAR v Ngo Wai-kuen Cr Apps 191 & 334/ 2004, the Applicant was put on bail for the offence of possession of a dangerous drug (Charge 1).  She then committed another offence of possession of a dangerous drug (Charge 2) and the offence of keeping a divan (Charge 3).  Stuart-Moore VP said in para. 9 of the Judgment:

“Each offence was committed on a wholly separate occasion. Indeed, it is a significant aggravating feature that the second and third offences in the sequence were committed whilst the applicant was on bail.”

18.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

19.I adopt a starting point of 28 months on Charges 1 and 2 each, to be served concurrently.  Aggravated by his committing further offences whilst on bail, Charges 3 and 4 shall each come to a starting point of 36 months, to be served concurrently.  All 4 charges are to be reduced by a quarter because of the pleas of guilty but watered down by the result of Newton Hearing.

20.As between Charges 1 – 2 on the one hand and Charges 3 – 4 on the other hand, I adjust the overall sentence to 32 months based on totality as follows:

(1) Charges 3 – 4, each 27 months;

(2) Charges 1 – 2, each 21 months, 5 months consecutive to Charges 3 – 4.