HKSAR v. Kan Yun Fai and Another

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.I will read out my reasons for sentence for the 1st defendant. The 1st defendant pleaded guilty on the first day of trial and will be sentenced today after I have had a chance to hear and consider the evidence of prosecution witnesses presented during the trial of the 2nd defendant. This obviously only applies to charges 3 and 4. Both defendants were jointly charged with 3 and 4. I now have a more visual picture of the 1st defendant’s role where the 3rd and 4th charges are concerned.

2.The 1st defendant alone faces and has pleaded to Charges 1 and 2.  The 2nd defendant is not connected to those charges. 

3.The 1st defendant used one fake credit card for Charges 1 and 2.  A fake credit card in the name of Chan Chi-kit, not his own name, was used to buy a Macbook Pro and an iPhone 4 from one electronics shop in Kwun Tong on 6 March last year.  He presented a fake Diner’s card which was subsequently confirmed to be a fake and the total loss suffered by the victim was $21,676. 

4.Charges 3 and 4 relate to an attempt six days later in a Chow Sang Sang shop located inside the Disneyland Theme Park.  There was an attempt to buy gold ornaments in this shop. 

5.The 1st defendant agreed the facts of the prosecution’s case.  He admits jointly attempting to buy gold worth a total of $34,240 with two fake Diners credit cards, one in his own name and the other being in the 2nd defendant’s name.  The attempts were unsuccessful.  The transaction process took a long time due to the staff of Chow Sang Sang verifying the two cards with the appropriate card centre.  The card centre suspected the cards were problematic but took a long time to check the details.  As a result of the delay the 1st defendant decided to leave the shop before he was at risk of being arrested.  He told the prosecution witnesses, the staff, that he was in a hurry and took the cards back and left the shop.  He was not arrested until some months later. 

6.The charge of obtaining property by deception with fake forged credit cards is a 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, HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517 and HKSAR v Tu I Lang CACC464/2006.  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. 

7.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 credit cards used.  The planning behind each operation is significant, in particular whether or not it is sophisticated.  If there is an international dimension to the operation, then this should be taken into account.  Clearly each and every defendant’s role in an operation is very relevant.  The sentence will be very different if it is proved he or she is a mastermind or just a cog in the wheel.  Lastly, obviously a plea is relevant.

8.In this case, the 1st defendant’s charges involve a total of three credit cards in four charges.  The total loss suffered is not huge but not insignificant and the facts of this case show that this is not the most serious case for an offence of this nature.  There is no evidence to suggest that he is otherwise just a cog in the wheel, nor is it a particularly sophisticated operation.  There is an international element in that the details of the two cards related to Charges 3 and 4 show the details belonged to two persons whose cards were issued by an Austrian bank in Europe.  The cards obviously came from an operation, an organisation that could arrange for, in particular, the two cards of Charges 3 and 4 to be printed specifically to order by name. 

9.The defendant is not a man of clear record.  He has many previous convictions but none similar at the time of these offences when I heard full mitigation on 16 June 2011. 

10.I have considered the facts of this case, mitigation put forward, the relevant authorities, the starting points considered appropriate in those authorities and the reasons and facts considered in reaching those starting points. 

11.1st defendant, please stand up.  I will take for each and every charge a starting point of 3 years’ imprisonment.  You will be entitled to a discount of one-third for your plea of guilty.  For each charge, 4 charges, you are sentenced to 2 years’ imprisonment.  For Charge 2, the 2 years of Charge 2 will be served concurrently to Charge 1.  For Charges 3 and 4 there will be 4 months of those 2 year sentences which will be served consecutively to Charge 1 and the balance concurrently.  I make them part consecutive to reflect that there were separate credit cards and the offences were committed on a separate date. 

12.The defendant will be sentenced to a total of 2 years and 4 months.  Do you understand the sentence?

1ST DEFENDANT: Yes.