HKSAR v. Tsang Siu Keung and Another

DCCC 564 & 661/2011
(consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.564 & 661 OF 2011

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Reasons for Sentence

1.There are 2 defendants in this case. D1 faces only one charge (count 1) while D2 faces the remaining 5 charges on the consolidated charge sheet. D1 pleaded guilty to charge 1, D2 pleaded guilty to charges 3, 4, 5 and 6. As a result of D2’s plea, charge 2 was ordered to be kept on file and not to be proceeded with against D2 without the leave of the court.

Facts

2.This is a credit card fraud case.

Charge 1: D1

3.At around 1:20pm on 4^th April this year, D1 was spotted by Police officers using credit cards to buy a pair of gold bracelets sold at $13,300 in the TSL Jewellery stall inside Jusco Department Store. D1 used 3 different credit cards to pay for the purchase. The first 2 were rejected but the third was accepted. D1 was intercepted by the Police after the purchase. Under caution, D1 admitted that the credit cards were forged cards that he had obtained from a person “Ah Shing” for $2,400 that morning. Forensic scientist confirmed that the 3 cards were forged.

Charge 3: D2

4.At around 1:30pm on 4^th April, another 2 Police officers of the same team who were patrolling outside Jusco saw D2 acting furtively nearby. They intercepted D2 and searched up. Upon search, a cardholder copy of a credit card receipt in the amount of $977 in the name Chan Chun Kit was found on him but no such credit card was found on D2. Upon interrogation, D2 confessed that he had used a forged credit card to pay for the meal earlier. D2 was arrested and cautioned. Under caution, D2 stated that he knew the credit card was forged and that he had already abandoned the card after using it to pay for the meal.

Charge 4: D2

5.At around 1:30pm on 11^th April, which was 7 days after D2 was arrested for charge 3, D2 bought 3 polo shirts for $1,300 at a boutique at the passenger terminal building of the Hong Kong International Airport. D2 used a MasterCard in the name of Chan Chun Kit to make the purchase, which was successful and D2 left the shop with the shirts.

Charge 5: D2

6.At around 1:35pm the same day, D2 requested to buy 4 bottles of perfume worth $3,690 at the Chanel shop in the same passenger terminal building. D2 presented a different MasterCard but also in the name of Chan Chun Kit for payment. The card was rejected and D2 took the card and left. Staff of the shop felt suspicious and reported the matter to the Police.

Charge 6: D2

7.About 15 minutes later, Police spotted D2 boarding a private car at the car park of the airport. Police intercepted and searched D2. Upon search, they found in D2’s wallet the 2 credit cards that he had used in charge 4 and 5, as well as another MasterCard in the name of Chan Chun Kit. D2 was arrested. Upon search of the vehicle, the 3 polo shirts were found in the boot of the car.

8.Staff of the shops in charge 4 and 5 positively identified D2 in the identification parade. The polo shirts found in the car were also confirmed to be the shirts sold to D2.

9.Forensic Scientist confirmed that the 2 credit cards used in charges 4 and 5 as well as the one found in D2’s wallet when he was intercepted at the vehicle were all forged.

Previous convictions

10.D1 has 5 previous convictions. He was last convicted in March of 2009 for claiming to be a member of a triad society and assault occasioning actual bodily harm.

11.D2 has 5 previous convictions. He was last convicted of possession of dangerous drugs in August 2010 and was sentenced to 4 months’ imprisonment.

Mitigation

D1

12.D1 is 24 years old. Single, living with his mother, who is 56 years old. older sister/26 is a bank clerk. Father died 3 years ago, who was the breadwinner before he passed away. D1 is a clerk earning on average $8,000. D1 would contribute about 2-3k to his mother. Since his father’s death, D1 had shouldered the burden of the family.

13.D1 had borrowed money from his friend, it was out of greediness that he committed the offence. This is the first time he used a forged credit card. fortunately there was no property loss, no violence and he had made no attempt to run away when he was intercepted. Also, D1 admitted to the offence on the spot. D1 is remorseful of what he did.

14.D1 is a good staff. Letters from his mother and employer submitted.

D2

15.D2 is 26, living with his father. His mother left when he was very young and he was raised in single parent family. His father had a stroke a few years ago and could no longer work afterwards. The defendant used to work as a cook earning about 9k per month. Apart from his work, he has to look after his father. The defendant was unemployed at the material time.

16.The defendant committed the offence out of greed. Although there are a few charges against him, but the latter 3 charges took place on the same day, while the first one was a week before. The defendant was cooperative with the Police. Although just a receipt was found on him, upon Police investigation D2 frankly admitted his using the forged credit card and that he had abandoned it.

17.There were 3 credit cards involved, only 2 attempts were successful. For charge 3, it was used for a meal in a restaurant with amount less than $1,000. As for charge 4 it was for 3 polo shirts, they were just $1,300. The shirts were recovered, no loss for the owner.

18.In other cases, the defendant would buy expensive items, such as gold or LV bags with high resaleable value. In the present case, D2 just bought self-use items.

19.I have case here, HKSAR v Tu I Lang, CACC 464/2006. Mr. Lee relies on this case to submit that a starting point of 3 years or below is appropriate in the circumstances.

20.In relation to totality, wish for concurrent sentence.

Sentencing cases

21.The maximum sentence for each of the 6 charges is that of 14 years’ imprisonment.

22.In the case of R v Chan Sui To, CACC 115/1996, the Court of Appeal set out some factors to be considered in sentencing credit card fraud cases:

“13. A number of authorities were cited to us to indicate the level of sentences for credit card frauds. It is not easy to reconcile the sentences, but in general we apprehend that a sentencing judge would need to consider various factors including:

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.

The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent.

Whether there is an international dimension.

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.

Whether there is a plea of guilty.

14. In considering whether large sums of money were involved, we would suggest that, at the present cost of living, amounts up to $50,000 may be considered relatively small, amounts from $50,000 to $150,000 medium, and amounts above that may be considered large.

15. We now look at some of the authorities, bearing in mind the factors suggested above. It goes without saying that the five factors mentioned above are not intended to be an exhaustive list.”

23.In the case of HKSAR v Cheung Ka Wo, Johnny, CACC 136/2001, the Court of Appeal dealt specifically with cases of credit card fraud where the number of cards and the amount of money involved was relatively small and where there was no evidence of syndicated operation nor an international element.

“7. We have been greatly indebted to Mr Paul Madigan, on behalf of the Respondent, for the research he has conducted into a number of further judgments relating to the use of false or counterfeit credit cards. He was right to point out that the only previous case in which guidelines for sentence have been set out was R v Chan Sui-to [1996] HKCLR 128 to which the judge in the present case had referred. Significantly, and somewhat obviously, 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."

8. This passage was referred to in HKSAR v Hung Ping-wah, CACC 241/1997 and 488/1997 (unreported) which was also the subject of reference by the judge when passing sentence in the present case. In Hung Ping-wah, the total sum involved related to goods valued at $7,000. The Appellant pleaded guilty to two charges of using a false instrument and a third charge of possession of forged instruments. 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 four 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, as Mr Mughal was quick to emphasise, 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 three years' imprisonment.

9. 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."

10. 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 facts of that case bear little relationship to the present case as the offences which were disclosed were far more grave. However, the court commented (at p. 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."

The court in that case went on to state that:

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

11. It is well known that in this jurisdiction severe sentences are given to those who commit offences of the kind with which we are presently concerned as a deterrent to others who are like-minded. One justification for this is that the integrity of the credit card system is highly important in this day and age and the confidence which people, as Mr Madigan pointed out in the course of his argument, are entitled to place on this aspect of modern commercial life is necessarily eroded by others who attempt to beat the system by fraudulent methods (see: HKSAR v Yau Wai-chun, CACC 417/2000 (unreported)).”

Sentence

D1: $13,300 (charge 1)

24.The number of forged credit cards involved in charge 1 is 3 and the amount of money involved in the purchase is $13,300. Bearing in mind the mitigation put forward and that there is no evidence of a syndicate or international element, the small number of cards involved and the small amount involved, but at the same time recognizing that money is not the most important factor to consider, I find that 3 years’ imprisonment is an appropriate starting point. D1 is therefore sentenced to 24 months’ imprisonment upon discounting for his plea of guilty.

D2: $5,967 (charges 3,4,5 and 6):

25.There is one credit card involved in each of charge 3, 4 and 5. In relation to charge 6, of the 3 cards in D2’s possession, 2 were the ones he had just used in charge 4 and 5.

26.The total amount involved in the using of forged cards in charges 3, 4 and 5 was $5,967.

27.There is no evidence of a syndicate or international element. Only a small number of cards was involved and the amount of money involved was, in total, just around $6,000. D2 however committed charge 4 and 5 after his arrest for charge 3 and he committed charges 4 and 5 one after the other, showing blatant disregard for the law.

28.I will adopt a starting point of 3 years’ imprisonment for each of charge 3, 4 and 5, reducing each to 2 years’ imprisonment in recognition of D2’s guilty plea.

29.I will adopt a starting point of 2 years’ imprisonment for charge 6, reducing it to 16 months’ imprisonment in recognition of D2’s guilty plea.

Totality

30.As mentioned above, D2 committed charges 4 and 5 after he had been arrested for charge 3, showing disregard for the law and suggested that had he not been stopped he would have carried on.

31.I will order that 3 months of the sentence in each of charge 4 and 5 be served consecutively to the sentence for charge 3, the balance to be served concurrently. The sentence in charge 6 to be served concurrently to the rest of the sentences. D2 is therefore sentenced to a total of 2 years and 6 months’ imprisonment for the four charges.