HKSAR v. on Hing Kat

DCCC1123/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1123 OF 2011

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to three offences of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap. 200 to one offence of possession of false instruments, contrary to that same Ordinance.

2.You admitted the brief facts and I convicted you.  Briefly the facts were as follows. 

Charge 1

3.At about 6.39 pm on 24 January last in JUSCODepartment Store in Tsuen Wan, Miss Carol Lam, who was PW4, served you with a bottle of Martell Cordon Bleu valued at $5,088.  You went to the cashier, handed Miss Mak Suk-yee, PW2, a Citibank MasterCard with your name on it.  The purchase was successful.

Charge 2

4.At about 6.56 pm that same day, Miss Ting Siu-yuen, a saleslady on a different floor of the same shop served you with two sets of blankets and a bedcover valued at $3,697 in total.  You paid the cashier using the same credit card.

Charge 3

5.At about 7.21 pm that same day, PW1, a security guard at Level 3 observed you, requesting abalone and then changing your mind in favour of Martell X.O. valued at $5,688.  Being suspicious he called the police.  You paid PW2 using the same credit card, again it appears that the payment was successful.

The arrest and search in Charge 4

6.PW1 followed you to Heung Wo Street, where PC 34843 (PW6) intercepted you and searched you.  He found the following:

(i) a black cardholder containing three fake Citibank credit cards in the right front pocket of your trousers;

(ii) a credit card, receipt and sales invoice relating to Charge 3; and

(iii) the bottle of brandy relating to Charge 3.

7.Under arrest and caution, you admitted the following:     

(i) you bought the three credit cards in Shenzhen for $1,200;

(ii) you intended to use them in Hong Kong;

(iii) you only used one credit card to purchase goods in JUSCO, the goods were two bottles of brandy and bedding;

(iv) you gave the stolen items to one Ah Wai, who you were now unable to contact.

8.In a subsequent video recorded interview under caution you confirmed your admissions.  All three credit cards were later found to be forged.  You admitted the six previous convictions on two separate occasions, three of those convictions were related to crimes of dishonesty. 

9.On your behalf Mr Leung entered mitigation.  He told me that you are 33 years of age, recently married and employed as a part-time construction site worker earning $10,000 per month when work is available.

10.You provided financial support to your parents. In Hong Kong you have also a brother and a sister.  He said that the present offence arose from economic difficulties as you found it very difficult to support your wife and parents on your salary.   It was Ah Wai who tempted you into buying the forged credit cards and then selling the goods back to him.

11.He pointed out the offences were small scale, unsophisticated and with no international dimension.  The total value of the goods illegally acquired by one forged credit card was $14,473, but one bottle of brandy relating to the 3rd charge had been recovered.  He also pointed out that he had in his possession $8,785 by way of compensation for the balance. 

12.Mr Leung then proceeded to read out letters of support from your wife, your father and your employer.  It seems that your job is still available to you upon release.  He also read out to me a letter from yourself expressing remorse and your intention not to commit further offence in the future.   He told me there are five members of your relative family present in court including your wife and mother.  He said that you pleaded guilty, you expressed remorse and you offered full compensation.

13.He then referred me to the sentencing precedent of HKSAR v Tu I Lang CACC464/2006.  The facts of that case I note are quite similar to the present case.  The Court of Appeal reduced the sentence to a starting point of 3 years, imposing 2 years because of the plea of guilty.  Also the Court of Appeal made the point that an even lower starting point could be appropriate in given circumstances. 

14.On your behalf Mr Leung urged me to take the view that a lower starting point was indeed appropriate in this case.  I turn now to the sentence. 

15.You are a man with previous convictions for dishonesty although your record is not lengthy.  I accept that these offences are small scale involving the use of only one credit card and possession of three, that they were extremely unsophisticated and there is no international dimension.  I also note that upon your arrest, you were fully cooperative with the police making full admissions. 

16.I take into account the letters of support that had been presented to me and I accept fully that you are willing to compensate the victims for their loss.  I also accept that your misplaced motive was to support your family not to fuel any drug addiction or gambling addiction.  Whilst there are four offences, given the time spent in nexus between those offences, it is clear to me this is one course of conduct we are dealing with.   I have also taken into account your recent marriage, in the hope that this will help you to proceed without committing further offences in the future.

17.Sentences imposed will be these.  In each case I take a starting point of 33 months (2 years 9 months) reduced to 22 months for your plea of guilty.  They will all be served concurrently, that is a total of 22 months.  You will pay forthwith the compensation which amounts to $8,785, which is about to be paid into court to the victim.