HKSAR v. Tang Kwok Wa

DCCC695/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 695 OF 2011

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant enters a plea of guilty to one charge of “Using a false instrument”, laid against him under section 73 of the Crimes Ordinance, and one charge of “Possessing false instruments”, preferred under section 75(1) of the same Ordinance.

2.The facts of the case to which the defendant agrees are as follows.  The defendant presented a CitiBusiness VISA Card to a staff member of a Louis Vuitton Store at Tsim Sha Tsui for the purpose of making a purchase (Charge 1).  The staff member suspected the card was a forged one and had the matter reported to the supervisor, who in turn made a report to the police.  The staff member returned the card to the defendant and a team of police officers arrived.

3.The officers found in the defendant’s possession two other credit cards (Charge 2).  Under caution, the defendant admitted all three credit cards were forged, and that he had intended to use them to make purchases of goods for re-sale to repay a debt. 

4.The cards seized in this case were subsequently confirmed to be forged credit cards.

5.The court finds the defendant guilty as charged. The defendant has had a clear record prior to his current conviction.

6.In mitigation, the defence puts forward the following matters for the court’s consideration. 

7.The defendant is now 21 years old, and has had a clear record.  He pleads guilty to the charge and accepts criminal responsibility of his conduct.  This shows remorse on his part.  The defendant has had a difficult upbringing and has never seen his natural father.  Prior to the commission of this offence, he has been out of work for some five months and has fallen into debt.  The defence submits that whenever the defendant managed to secure a job, he would contribute $3,000 towards his mother’s household expenses.

8.The defence refers to the case of Tu I Lang CACC 464/2006, in which the Court of Appeal adopted a starting point of three years for a small-scale card fraud, without international elements.

Discussion

9.The offences of which the defendant stands convicted are serious.  Deterrent sentences are called for, as these offences are “a running scourge.” (see HKSAR v Leung Pui Shan, CACC 317/2007). 

10.In HKSAR v Cheung Ka-wo, CACC 136/2001, the Court of Appeal said:

“…the only previous case in which guidelines for sentence have been set was R v Chan Sui To [1996] HKCLR 128…it was stated in that appeal that:

‘The sum of money involved is of course only one of the factors to be taken into account. It is not even the most significant factor.’

…In Hung Ping Wah, the total sum involved related to goods valued at $7,000. There was, as in the present case, no suggestion of an international dimension and no evidence of a syndicated operation. An overall starting point of 4 years for the two charges of using a false instrument was regarded by this court as having been “on the high side”, but it was said to have been “not manifestly excessive”. There was, however, the further factor in that case, namely, that following the appellant’s arrest, he was found … to have had ten more false credit cards in his possession, reflected in the third charge, which no doubt caused the judge in the present case to adopt the lower starting point of 3 years’ imprisonment.

A further example which reveals this court’s approach to sentence for offences related to false credit cards is to be found in HKSAR v Watt Siu-hung, CACC 93/2001 (unreported). In that case, the value of the goods obtained on the two forged credit cards was slightly in excess of $3,000. The judge took a starting point of three years for these offences which the court again 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.’

The sentiment in relation to the potential losses involved in offences of this kind was specifically addressed in HKSAR v Ng Swee-thiam & Ors [2000] 1 HKLRD 772 … the court commented (at page 778) that the amount proved to have been lost by the fraudulent use of credit cards:

‘pale(s) into insignificance when consideration is given to the potential for losses in the future…

It is this potential for losses which is the most important consideration.’”

11.In the instant case, the court accepts that this is a small scale operation, without any international element.  A starting point of three years would be appropriate for the two charges combined.

12.Apart from the defendant’s clear record and guilty pleas, the court notes the defendant’s somewhat unusual upbringing.  The defendant’s mother was about 20 years old,  unmarried at the time, when she fell pregnant with him and got separated with the defendant’s natural father.  After his birth in 1991, the defendant was entrusted to the care of his maternal grandmother.  His mother got married quickly, and to that marriage was born the defendant’s step-brother in 1992.  The following year, the husband deserted the family.  The step-brother was likewise taken to the maternal grandmother for upbringing.  The defendant’s mother soon co-habited with a Mr Lai, and out of that relationship was born a daughter in 1996.  When the defendant turned 14 in 2005, he and his step-brother were restored to live with their mother’s family. 

13.During the first 14 years of his life, the defendant has never had much parental care, guidance, and attention. At 14, chances of the defendant establishing a normal child/parent relationship with his mother and her co-habitee would have long gone.  Rebellious in character, the defendant moved out in 2009, to fend for himself.  He was then 18. Unable to maintain any stable employment, he started to borrow money to sustain himself.  At the time of the offence, he owed his friends some $15,000, and it was because he had wanted to repay his debt that he decided to use the false credit cards to purchase goods for re-sale.

14.In all the circumstances of this case, the court would adopt a starting point of 15 months’ imprisonment for Charge 1, and, in view of the defendant’s clear record and guilty pleas, reduce it by one-third to one of 10 months’ imprisonment.  A starting point of 30 months would be appropriate for Charge 2, which is likewise reduced by one-third to one of 20 months’ imprisonment.

15.Having considered the totality principle, the court orders that four months of the sentence for Charge 1 should run consecutively to the 20 months’ imprisonment for Charge 2, resulting in a sentence of 24 months’ imprisonment.

16.Every population would have its share of unfortunate members, who, due to their deprived upbringing, are prone to error and crime.  In assessing sentence, personal background must, however, be taken into account to arrive at a fair and individualised outcome.  The court is of the view that a further reduction of four months should be given to the defendant on account of his unfortunate upbringing in circumstances beyond his control, circumstances not of his own making.

Order

17.The defendant is sentenced to a term of imprisonment of 20 months.