HKSAR v. Cheung Chun Man, Benjamin

DCCC 614/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 614 OF 2011

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Reasons for Sentence

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Charges and facts

1.On 4 March 2011, the Defendant used 2 false credit cards (“A” and “B”) to try to buy goods of $12,000 in total from a Louis Vuitton shop but failed (Charges 1 and 2).  The staff notified the police in secret.  Shortly after leaving the shop, the police intercepted him and found in his possession another false credit card (“C”) apart from A and B (Charge 3).  Under caution he said he had bought the 3 cards at $3,000.  He was granted police bail.

2.9 days later, on 13 March 2011, he used a false credit card (“D”) to try to buy goods of $2,000 from a Zara shop but failed (Charge 4).  He left in a hurry without retrieving the card.   

3.Another 9 days later, on 22 March 2011, under police surveillance he entered a TSL Jewellery shop.  He used a false credit card (“E”) to try to buy goods of $22,080.  Part of the price, $10,000, was approved (Charge 5).  He used another false credit card (“F”) to pay the balance, namely $12,080, but failed (Charge 6).  He made off with $10,000 worth of goods.  The police intercepted him and found in his possession those goods and another false credit card (“G”) apart from E and F (Charge 7). Under caution he admitted having used D (Charge 4) which he had bought at $1,000 and said he had bought the 3 cards (E, F and G) at $3,000. 

4.His name appeared on all 7 cards as the card-holder. 

Personal background and mitigation put forward

5.The Defendant is 24 years of age. He has received F. 7 education.  He last worked as a mathematics tutor.  He has 1 previous record for theft, resulting in community service.  He has lost his job as a mathematics tutor before arrest.  He committed the present offences due to financial strain. 

6.His solicitor accepts that committing Charges 4 – 7 whilst on bail for Charges 1 – 3 is an aggravating factor in his sentence. 

Sentencing considerations

Factors affecting the level of sentence

7.There are no sentencing tariffs for credit card fraudsters.  In HKSAR v Cheng Sui-to [1996] 2 HKCLR 128, 131, the Court of Appeal held that a sentencing judge would need to consider 5 factors before deciding the level of sentence, although Yang CJ went on later to say that this was not intended to be an exhaustive list.  These factors were as follows: 

“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.”

Examples of sentence

8.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.”

9.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. 

10.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.  In the said 30 months had actually been included an extra 6 months for his last offence committed whilst on bail for prior offences.  

11.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 said offences, he tried to buy a Louis Vuitton handbag with a false credit card.  The transaction could not be completed.  He came back with another false credit card.  The police came to the shop and arrested him with 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 said offences, he successfully used a false credit card to buy an Omega watch.  He also possessed 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 for all 7 charges. 

Sentencing this Defendant

12.There is no evidence to connect him to any syndicate or international dimension.  No shop had suffered any loss.  For Charges 1 – 3, which took place on 4 March 2011, I take a starting point of 24 months each.  For Charge 4, which took place on 13 March 2011 whilst he was on bail for the subject-matter of Charges 1 – 3, I take a starting point of 30 months.  For Charges 5 – 7, which took place on 22 March 2011 whilst he was on bail for the subject-matter of Charges 1 – 3, I take a starting point of 30 months each. 

13.The pleas of guilty shall attract a one-third discount.  Upon such a discount the sentences shall become 16 months each for Charges 1 – 3, 20 months for Charge 4, and 20 months each for Charges 5 – 7.  There are no other mitigating factors.     

14.Charges 1 – 3, Charge 4, and Charges 5 – 7 pertained to 3 separate dates of offence.  Eschewing the practically insignificant distinction between the using and the possessing of the cards in our present case, each date warrants sentences concurrent in itself but consecutive to other dates.   

15.I sentence him to 32 months in total according to the following totality adjustments:

(a) Charges 5 – 7: 20 months each, all concurrent;

(b) Charge 4: 20 months, out of which 6 months to be consecutive to other charges;

(c) Charges 1 – 3: 16 months each, all concurrent, out of which 6 months to be consecutive to other charges.