HKSAR v. Lui Ka Cheong

DCCC561/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 561 OF 2011

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Reasons for Sentence

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1.The defendant has pleaded guilty today to a total of 6 charges. Charge 1 being possessing false instruments, contrary to 75(1) of the Crimes Ordinance, Cap. 200. That would include in that offence 3 fake credit cards all in his name. Charges 4, 5, 6 and 7 are all identical charges of using a false instrument, contrary to section 73 of the same ordinance. Simply put, the defendant has used one of the three cards that were found in his possession in a total of three shops on four occasions on the same day. That is the same day that he was arrested. Total amount spent is $9,251.

2.Lastly, he has pleaded guilty to Charge 8, possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134.  Defendant had in his possession 2 tablets containing a total of 0.01 gramme of nimetazepam, “Five Chai”. 

3.The facts of this case are very straightforward.  The defendant and another who has since absconded were intercepted by the police on 10 March this year at about 8.38 pm.  Items that the 1st defendant had purchased were either found on his person or in a vehicle. 

4.Upon arrest, the defendant admitted that he had used one of the three forged credit cards and that the dangerous drugs were for his own consumption.  Upon a further video record of interview the 1st defendant elected to remain silent. 

5.The defendant is not a man of clear record.  He is 35 years old and has 8 previous convictions; they relate mainly to dangerous drugs.  His best mitigation today is his plea of guilty.

6.Defendant’s background is unremarkable.  He comes from a good family.  He was obviously educated to a high enough standard that he was able to gain entry into a university in Sydney.  His family was obviously well off enough to support this further education.  Unfortunately, the defendant dropped out before completing this degree.  He then returned to Hong Kong where he himself admits that he has disappointed his own family by continually being in and out of trouble, in and out of court and as of late in and out of prison.  Despite disappointing his family, they are still here to support him and will continue to support him.

7.From what I can tell from the defendant’s previous criminal record, clearly drugs have been his downfall.  He has written a letter to court today to say that he has been in custody for the longest period of time that he has lost his liberty and has had time to reflect.  He is hoping that he can keep his promise of turning over a new leaf and perhaps mending bridges with his own family.

8.I have also heard mitigation put forward on his behalf by Mr Lam setting out what are the salient mitigating factors of this case.

9.Credit card fraud is serious and it is to be discouraged by courts and the sentences they impose.  The reason is obvious; it affects Hong Kong’s reputation.  The Court of Appeal and the Court of Final Appeal have said on many occasions that credit card fraud erodes the credit card system and it damages Hong Kong’s standing in the international community.  That is why sentences have continually been heavy to reflect the seriousness of these cases. 

10.I have looked at the authorities produced by defence counsel.  I have also referred myself to the case of R v Chan Sui To which is a 1996 - CA125 of 96 - a 1996 authority that sets out the relevant factors that I have to take into consideration for sentence.  They include the size of the operation which would mean the number of persons involved, the number of credit cards and the amount of loss or perhaps future loss. 

11.In this case there were two of you, but what is most relevant is the fact that you had 3 cards on your person, fake cards that were in your name, not a significant amount.  Another factor that is relevant is the planning involved, here, a simple operation.  Thirdly, whether or not there is any international dimension which would make it more serious.  Here, there is no such evidence of that.  Fourthly, your role, the defendant’s role. In this case it seems the defendant obtained these cards to shop either for his own use or to an amount that is not significant.  As I have said, the amount is about $9,400.  And, lastly, whether the defendant pleads guilty or not guilty.

12.I have also referred myself to an authority of Tu I Lang, CACC464 of 2006, where very similar facts exist here as in that authority.  The most important relevant factors are the amount of cards and the amount of loss which I have said is not significant.  I would say that this can only be described as a small scale operation. 

13.In that Tu I Lang authority, a starting point of 3 years’ imprisonment was considered appropriate and I believe the same would apply here. 

14.Defendant, please stand up.  For Charges 1, 4, 5, 6 and 7, I will take a starting point of 3 years’ imprisonment.  I find that to be the appropriate starting point.  You have pleaded guilty to which you will be entitled to a discount of 1 year.  For Charges 1, 4, 5, 6 and 7, you will be sentenced to a term of 2 years’ imprisonment.

15.For Charge 8, the dangerous drugs offence, I will take a 6-month starting point which reflects your previous drug history and convictions.  You are entitled to a discount of one-third for your plea today.  For Charge 8, you will be sentenced to 4 months’ imprisonment.

16.All 6 charges will be served concurrently.  That is a total of 2 years’ imprisonment.  Do you understand that sentence?

DEFENDANT: Yes.