HKSAR v. Chan Kim Fung

DCCC909/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 909 OF 2011

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Reasons for Sentence

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Charges

1.  The defendant came before me this morning and pleaded guilty to the 1st charge of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap. 200, and Charge 2, possessing false instruments, contrary to section 75(1) of the Crimes Ordinance, Cap. 200.

2.  The subject matter of the false instrument in both charges are forged credit cards in the defendant’s name.  The 1st charge involved one Bank of America MasterCard, while the 2nd charge involved, firstly, one Capital One MasterCard, and secondly, one CitiBusiness VISA Card, so there are a total number of three forged credit cards in question.

Facts

3.  The facts of these two cases are straightforward and unremarkable.

4.  In relation to Charge 1, at around 4.30 pm on 8 July 2011, the defendant attended a supermarket situated in Hung Hom and requested to use the forged credit card in question to purchase cash coupons valued at HK$2,000 and a bottle of XO liquor valued at HK$1,368.  

5.  As the supermarket manager checked the credit card and found that it is of poor printing quality, he suspected that was a forged credit card and made a report to the police.  Later, police officers arrived and, upon enquiry, the defendant was arrested for the offence of using a false instrument.

6.  After the defendant was arrested, he was then searched, and upon search, another two forged credit cards, both in the name of the defendant, were found from the defendant’s wallet.  These two credit cards were too found to be in poor printing quality. Therefore the defendant was further arrested for the offence of possessing false instruments.

7.  In relation to these three cards, the defendant said under caution that he applied these credit cards years ago when he studied in the UK. In the subsequent video-recorded interview, the defendant finally admitted both charges.

8.  In summary, what the defendant admitted under caution was that two days before the offence he met an unknown male at a bar in Mong Kok, and the male asked the defendant if he was interested in using forged credit cards to make purchase.

9.  The defendant agreed and provided his name and telephone number to this male.

10.  Then, in the afternoon of the date of the offence, the defendant was asked to collect the three forged credit cards in question inside a male toilet in a shopping centre in Lam Tin.  He later used one of the forged credit cards to purchase the cash coupon and the bottle of wine at the supermarket.

11.  A document examiner of the Government Laboratory examined the three forged credit cards in question and confirmed them to be forged upon examination.

Records and Mitigation

12.  The defendant is now aged 24, he is single.  He had three previous conviction records with no similar records. Since 2003 to 2009, the defendant was sentenced to Probation, Rehabilitation Centre and also the Drug Addiction Treatment Centre.  He was last convicted in December 2009.

13.  The defendant has only a Form 3 education level.

14.  This morning his lawyer Mr Ng had informed the court that the defendant had once worked as a kitchen worker, earning an income of about $9,000 to $10,000.  As the defendant was last released from the DATC in May this year, he ran into financial difficulty.  Because of the desire to earn quick money, he therefore promised to the suggestion by the unknown male to commit the two present offences.

15.  The defendant is now very remorseful and by pleading guilty to the charges without wasting the court’s time, he wishes the court to sentence him leniently.

16.  In mitigation, Mr Ng also referred to the court a number of authorities in relation to forged credit cards.  Those are similar and familiar cases involving these kind of offences.  One of those authorities is HKSAR v Tu I Lang (杜壹朗) [2007], CACC464/2006.  In that case, the appellant had pleaded guilty to one count of using a false instrument and one count of possessing false instruments so these are similar offences with which the defendant in the present case was charged.

17.  The District judge in that case adopted a staring point of 3 years and reduced the sentence to 2 years on account of his plea and ordered that the sentence on both charges to run concurrently.

18.  As properly pointed out by Mr Ng, the Court of Appeal held in that where the facts of the offence pointed to a small unsophisticated operation involving only one or a few forged credit cards, uncomplicated by other evidence, or materially linking the offender to a larger operation, then a starting point of 3 years’ imprisonment or less was appropriate.

19.  Three years is of course not a very lenient sentence but one of the reasons for imposing a severe deterrent sentence for offences involving credit card fraud was to maintain the integrity of the credit card system and the public confidence in the system.

20.  In the case before me, it does not involve neither the manufacture of counterfeit or forged credit cards, nor any enterprise or large-scale operations.  Also, there was no loss which is caused to the supermarket in question although in Charge 1 the defendant attempted to use the forged credit card to obtain the cash coupon and the bottle of XO with a total amount of around $3,400.  This sum of money was of course not a large sum of money, but it is not most significant.  I have to take into account the potential amount of money that would be caused to the loss to the shop or the supermarket if the defendant was not apprehended.  It is clear to me that the defendant will keep on using the other two forged credit cards in relation to Charge 2 and to proceed to purchase in other shops.

21.  That the defendant wanted to earn quick money and committed the two offences would not be regarded as effective mitigation for committing crimes like these.

22.  Obviously, the defendant had been given numerous opportunities by the court to reform himself in the past few years but he had not learnt the lesson.  The time has come that immediate custodial sentence has to be imposed.  I can only urge the defendant to truly reflect on himself and to turn a new leaf  upon release from the prison.

23.  I would therefore follow the above authority use a 3 year starting point in each case and reduce the sentence by one-third to 2 years.  I order that the sentences on both charges to run concurrently.