HKSAR v. Kwong Wai Yin Jenny

DCCC225/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 225 OF 2011

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Reasons for Sentence

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1.The 2nd defendant was convicted after trial of Charges 3 and 4 only. I found this defendant guilty of acting in concert, a joint enterprise with the 1st defendant to attempt to defraud the Chow Sang Sang Jewelery shop of a total of $34,240 worth of gold ornaments by obtaining property by deception, using a fake credit card each.

2.The 1st defendant pleaded guilty before trial and has been sentenced.  His sentence reflected the plea of guilty and the show of remorse.   I do not intend to repeat the facts of this case, and my findings, I dealt with them in detail in my verdict.

3.In short, I found the defendants entered the Chow Sang Sang Jewelery shop inside Disneyland, chose a selection of gold ornaments and tried to pay by each producing a fake credit card in their own names.  When the transaction took an unusually long time due to a credit card centre authorisation check and the staff asking to see the defendants’ identity cards, clearly they panicked, cancelled the sale, took back their respective fake credit cards and identity cards and left the shop together.

4.As I said when sentencing the 1st defendant, attempting to or obtaining property by deception with fake or forged credit cards is a very serious offence.  There are guidelines where sentence is concerned and I have referred myself to several authorities, in particular R v Chan Sui To [1996] 2 HKCLR 128, as well as more recent authorities often referred to, such as HKSAR v Cheung Ka Wo, Johnny [2002], 2 HKC 517 and HKSAR v Tu I Lang, CACC464/2006. 

5.The courts have unanimously agreed that severe sentences are called for as a deterrent to others tempted to use fake credit cards that will undermine the credit card system and its integrity.  Credit card fraud must be stamped out.  From these authorities there are several established factors that are relevant when considering sentence, in particular, the size of the operation, which will include the amount of loss suffered as well as the number of fake credit cards used; whether or not the planning behind each operation is sophisticated.  If there is an international dimension to the operation, then this should also be taken into account.  

6.Clearly each and every defendant’s role individually in an operation is also relevant.  The sentence will be very different if it is proved he or she is a mastermind or just a cog in the wheel.

7.Where this defendant is concerned, she faces two charges arising out of one incident.  I called for a background report after conviction.  I did this because the defendant’s background is complicated by the fact she is a single mother of two young children and previously had a clear record.  I wanted to be fully appraised of her background before sentence.

8.I have heard mitigation today and considered the contents of the reports at hand.  There is no remorse from this defendant, she continues to protest her innocence.  I convicted the defendant due to overwhelming evidence and truthful, reliable, independent prosecution witnesses.  I rejected her obviously concocted defence.  Despite this, I do take several factors into account when considering an appropriate starting point.  I have also taken into account the relevant authorities I have referred to.

9.The factors I find relevant are as follows:

1. The defendant’s previous clear record, which is unusual when I consider the seriousness of this being her first offence.

2. Her background I can take into account. She is a single mother who has no assistance from her ex-husband. Her two children are young, 7 and 5 years old. Clearly, there was a rocky start to her adult life, but since the youngest child was a toddler she has now acted more responsibly. This defendant is very lucky to have supportive parents.

3. The amount involved here is significant but not so substantial.

4. This crime happened over a single occasion in a single shop and there were two cards only, one related to the defendant specifically.

5. The defendant and the 1st defendant were clearly not sophisticated criminals, they acted in a very amateur fashion. In fact, the staff’s suspicions were aroused before the defendants had even selected any goods to buy. In addition there was no evidence before the court of any international dimension or element to these offences. I will also take into account that having seen videotape evidence and hearing the witnesses’ account of their presence in the shop, I will accept that this defendant’s role was more passive than the 1st defendant. I will accept that it was the 1st defendant that led the way in this crime.

10.Having considered all the facts of this case, I will take a starting point for each offence of 2 years and 6 months.  This lower starting point when compared to the starting point of the 1st defendant’s sentence reflects this defendant’s role.  I will also consider it appropriate to give this defendant a further discount of 6 months for the mitigating factors I have just set out.  I see no reason for any further discount in view of her conviction after trial.

11.Please stand up, defendant.

12.For Charges 3 and 4, I impose a sentence of 2 years’ imprisonment.  Both these sentences will be served concurrently.  That is a sentence of 2 years’ imprisonment.