HKSAR v. Chui Mi Ling

DCCC 552/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 552 OF 2011

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Reasons for Sentence

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Charges and facts

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

2.In “Vinum Fine Wines” in Wan Chai, she used a credit card issued in her name to pay for the price, $36,800 in total, of 3 bottles of red wine (Charge 1).  She looked nervous.  Her credit card bore a customer service hotline number which was a USA phone number.  The staff checked with the card centre.  It suggested forgery.  A report was made to the police.

3.The police arrived in time to intercept her.  They found 2 other credit cards issued in her name on her (Charge 2).  Under caution, she admitted using forged cards for repayment of debts. 

4.All 3 cards were confirmed forged upon forensic examination. 

Defendant’s personal circumstances and mitigation

5.She is now 32 years of age, of a clear record.  She has attained F. 1 education.  She last worked as a saleslady.  She was deserted by her mother after birth.  Her father had another family.  She was put into the care of a paternal aunt.  She has put much effort into teaching and guiding her paternal aunt’s 16-year-old son.  He has shown marked improvement in his studies.  She committed the present offences to repay outstanding credit card loans. 

Sentencing considerations

6.Her solicitor has given various useful authorities. The legal position appears as follows:

7.The leading case is HKSAR v Cheng Sui-to [1996] 2 HKCLR 128. Yang CJ in the Court of Appeal stated that a sentencing judge had to consider at least the following 5 factors before deciding the level of sentence: 

“	1.	The size of the operation e.g. whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards.
	2.	The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent.
	3.	Whether there is an international dimension.
	4.	Whether the accused played a major role, e.g. running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he is a mere ‘cog in the wheel’ as a courier or a custodian or keeper.
	5.	Whether there is a plea of guilty.”

8.There are no sentencing guidelines.  Here are a few comparable cases:

(1) HKSAR v Watt Siu-hungCACC 93/2001:

The applicant used 2 forged cards to obtain goods of over $3,000. The sentencing judge took an overall starting point of 3 years for the offences. Mayo VP, who delivered the judgment of the Court of Appeal, said it was on the high side but not manifestly excessive.

(2) HKSAR v Cheung Ka-wo Johnny [2002] 2 HKC 517:

The appellant used 2 cards to purchase cosmetic products worth over $8,500 in a department store in Causeway Bay (Charges 1 – 3). When he used one of the cards again to buy goods worth over $3,000 in another department store, he was arrested. The Court of Appeal affirmed an overall starting point of 3 years for all charges.

(3) HKSAR v Lau Pui Hang CACC 393/2003:

The applicant supplied a false credit card to PW1 and PW2 each. The three would split the proceeds of purchases. They had made successful test purchases but soon intercepted by the police. The Court of Appeal reduced the starting point from 4 years to 3 years. PW1 and PW2 had pleaded guilty and become witnesses against the applicant. They received eventual sentences of 15 months and 18 months respectively. Their starting points would be about 2 ½ years if worked back from their guilty pleas and role as prosecution witnesses.

(4) HKSAR v Suen Tat Yeung, Ricky HCMA 709/2006:

The appellant tried to buy a pair of gold bracelets worth nearly $20,000 at a shop in Disneyland. The magistrate adopted a starting point of 2 years. The appellant subsequently abandoned the appeal against sentence. The Court of First Instance remarked that the starting point appeared to be in order.

(5) HKSAR v Tu I Lang CACC 464/2006:

The applicant came from Taiwan to purchase a mobile phone from a Fortress shop with a false credit card. The shop assistant cracked the plot and informed the police. He was arrested with 2 other false credit cards on him. The Court of Appeal reduced the concurrent starting point from 4 years to 3 years.

This case appears to be on all fours with our present one.

Sentencing this Defendant

9.There were 3 cards.  It was a small-scale operation.  The attempt to make good at $36,800 was ambitious, though.  She was a pawn.  I take a starting point of 3 years for each charge. One-third off for her pleas of guilty, the sentence is 2 years each.  By totality, I order the sentences to be fully concurrent.