HKSAR v. Ip Ki Fung, Ken and Another

DCCC78/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 78 OF 2011

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Reasons for Sentence

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1.D1 and D2 plead not guilty to Charge 4 in this case. They are convicted of that charge after trial. D1 has already pleaded guilty to Charges 1 to 3.

2.The facts of this case have just been clearly set out in my verdict.  I shall not repeat them. 

3.D1 is aged 34, D2 26.  Their personal information is set out clearly in their antecedent statements.  There is not much in them for mitigation, actually.  D1 has 12 previous convictions, including such dishonest offences as two robberies in 1991, one theft in 1994 and one using false instrument plus possession of false instrument in 2009. 

4.D2 has eight previous convictions.  Only the April 2008 one is related to dishonesty, i.e. attempt to obtain property by deception. 

5.Prosecutor draws my attention to a recent judgment, the facts of which are quite similar to our present case.  That judgment is CACC379 of 2010, HKSAR v Chan Ka Chung.  In that case, the defendant pleaded guilty to three charges: one, a charge of attempting to obtain property by deception; two, a charge of using a false instrument; and, three, a charge of theft.  Three forged credit cards were involved.  The defendant had used two of them to try to purchase goods of about $14,000 in value, but his attempts were unsuccessful.  The Court of Appeal considered a 3 years’ starting point was appropriate for a purely local, small-scale criminal enterprise involving a limited number of credit cards.  However, the Court of Appeal enhanced the sentence by 6 months because the defendant had a very bad record, including numerous counts of theft or attempted theft, going equipped for stealing, common assault, criminal damage, resisting arrest.  He had also breached probation and community service order.

6.Defence counsel in this case says that both defendants, although having some records, cannot be said to be treasuring numerous records of a similar nature.  Counsel says both defendants’ records are certainly not as bad as that of the defendant in the cited case.  Thus, the court need not enhance the sentence.  In any event, both defendants, counsel says, do not challenge much of the facts of the case.

7.On the facts of the present case, the enterprise of the two defendants can only indeed be regarded as a local, small scale forged credit card criminal enterprises.  They had conspired to use four forged credit cards, and D1 had actually used one to make two purchases at two different shops.  He failed in one attempt of which.  D1 had tried to use that card to buy about $9,000 worth of sportswear from the FILA shop.  He failed, but before that, he had successfully bought $3,900 worth of garments from the Vivienne Tam shop.  The goods were nevertheless recovered.

8.Both defendants do have some records.  Their records are certainly not good, but I would not say they are bad enough to attract any enhancement on this occasion, but I must say they have almost come to that threshold.  This time, I will adopt 3 years’ imprisonment as a starting point for their conviction after trial on Charge 4, and that is also the starting point for Charges 1 to 3 in relation to D1.  Although D1 faces four charges while D2 is only convicted of one charge, i.e. Charge 4, I consider both of them to be equally culpable in the present case.  They were clearly in a conspired criminal enterprise.  D1 pleads guilty to Charges 1 to 3.  He will receive the one-third discount.  Thus, on those three charges, I sentence D1 to 2‑year imprisonment on each count.  But both defendants are convicted only after trial.  They will receive 3 years’ imprisonment on Charge 4.

9.Counsel says both defendants agreed to much of the facts.  The fact is that both defendants have only agreed to those facts which they can hardly dispute.  They, however, dispute those facts, including those challenged admissions, that ultimately proved Charge 4 against them. I do not think either defendant deserves any reduction apart from D1’s plea to Charges 1 to 3.  I order all the four terms of D1’s imprisonment to run concurrently.  D1 is to be sent to prison for 3 years.  D2 also has to go to prison for 3 years for his sole conviction on Charge 4.

Please refer to CACC288/2011 for the relevant appeal(s) to the Court of Appeal.