HKSAR v. Cheung Siu Kwan

DCCC 561/2011

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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Introduction

1.The defendant has pleaded guilty before me and was convicted of a total of six charges.  The first one being Possessing false instruments, contrary to s 75(1) of the Crimes Ordinance, Cap200 (Charge 2) and four other charges of Using a false instrument, contrary to s 73 of the Crimes Ordinance, Cap 200 (Charges 3, 6, 7 & 9) and lastly a single charge of Failing to surrender to custody without reasonable cause, contrary to s 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221 (Charge 10).

2.The facts of the present case is simple enough.  According to the amended summary of facts which was admitted by the defendant, in the evening of 10 March 2011, the defendant and another male one LUI Ka-cheong (D1) were both intercepted by a party of police officers for enquiries when they walked towards a private vehicle parked outside Nos 93-103 Thomson Road, Wanchai, Hong Kong.  Both defendants were searched and as a result suspected forged credit cards were found on them and items which were suspected to be purchased with those credit cards were found in the vehicle.  In particular, one CHASE FREEDOM VISA CARD and one CAPITAL ONE MASTERCARD both in the name of the defendant were found in the right pocket of her vest.  The defendant was immediately arrested for Charge 2 and under caution, she admitted that she knew the cards were forged and asked for a chance.

3.The defendant further admitted using the forged credit cards alone on two separate occasions (Charges 3 & 9) to purchase sporting goods in Mongkok and together with D1 on another two occasions (Charge 6 & 7) to purchase computer products in Wanchai earlier in the same day before they were arrested.  The total amount involved in these charges was HK$9,319.

4.Forensic Scientist of the Government Laboratory confirmed that the credit cards found on both defendants were forged.

5.As far as the remaining charge of “Failing to surrender to custody without reasonable cause” is concerned, the defendant was extended court bail by the District Court on 17 June 2011.  She was required to attend the District Court again on 15 July, 2011.  She failed to attend the District Court as required on 15 July 2011 and a warrant of arrest was issued.  It was not until 19 March 2012 when the police re-arrested the defendant in Tsim Sha Tsui, Kowloon.

Defendant’s Background and Mitigation

6.The Defendant is now 28 years old and she has a clear record.  She received secondary education up to Form three level.  She then worked as a promoter for living.  She was first married when she was 18 years old and later gave birth to two sons who are now aged 8 and 10 respectively.  However, she divorced her first husband in 2006 and the care and custody of the two child belonged to the husband.  Later she married again to her present husband in about 2009.  I was told however that due to marriage discord, the couple has separated with each other for about one and a half year already.  The defendant is now living with her mother.

7.I was further told that the defendant’s mother now aged about 54 has been suffering from cervical cancer for over 10 years and recently suffering from a relapse of the cancer disease.  The defendant is thus responsible for taking care of her mother and accompanying her to attend the regular follow up out-patient medical appointments which is about 3 times a week at the Tun Mun Hospital.  Both the defendant and her mother are living on public assistance.  On the other hand, the defendant’s father now aged 56 is living alone in a rented accommodation. He was injured to his hand in an industrial accident some twenty years ago and since then he was living on disability allowance.  He also suffered from hypertension and asthma and he too relied on the defendant for support and care.  I was told the defendant has to work as a part-time promoter in order to pay her father’s rent.  There are two younger sisters in the family aged 26 and 27 respectively.  I was told they are working now leaving the defendant to look after their parents most of the time.

8.The defendant has written a letter to the court today to explain how remorseful she was and her determination to turn over a new leaf.  She also explained that she absconded in 2011 as she needed to take care of the mother and accompany her to attend the follow-up medical appointments.

Sentencing considerations

9.Credit card fraud is serious offence.  The need to protect the integrity of the credit card system in Hong Kong was extremely relevant.  Unlike a forged banknote, a forged credit card could purchase goods up to its credit-limit.  Although the amount involved in the present case as far as the defendant is concerned is by no means large, the seriousness of the offences lay in the potential for losses in the future, had they not been discovered.  As the defendant had two forged credit cards in her own name and D1 had also one forged credit card in his own name, that potential was very great (HKSAR v Ng Swee Thiam & Others [2000] 1 HKLRD 772, HKSAR v Cheung Ka Wo (unrep, CACC No 136 of 2001, [2002] 1 HKLRD C10, [2002] HKEC 324) applied). (See pp85J-86F.)

10.I have been referred to a numbers of authorities by the defence solicitor, Miss Wong in her written submission.  The leading authority in credit card fraud cases is of course R v Chan Sui-to & another [1996] 2 HKCLR 128.  It was held that in ascertaining the sentence for credit card frauds, a sentencing judge will need to consider various factors including (a) the size of the operation, eg whether it involved large sums of money, whether it concerned a large number of persons or forged credit cards; (b) the planning that had gone into perpetrating the fraud, whether it was elaborate or simple, whether technical skills were used, and to what extent; (c) whether there was an international dimension; (d) whether the accused played a major role, eg running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he was a mere "cog in the wheel" as a courier or a custodian or keeper; and (e) whether there was a plea of guilty (See p131E - G, I.).

11.In this case, there were two defendants involving a total of three forged credit cards including the two printed in the name of the defendant.  Although this case involved a comparatively small sum, this was only one of the factors to be taken into account and was not the most significant factor (A-G v Chan Piu Sang & Another [1994] HKCLR 211 followed).  The Defendant’s operation was a planned one of some sophistication although there was no international dimension.  

12.In a more recent case HKSAR v Tu I Lang CACC 464/2006, the Court of Appeal held that where the facts of the offence point to a small, unsophisticated operation, involving only a few forged credit cards and uncomplicated by evidence which linked the defendant to a larger operation, a starting point of 3 years' imprisonment or less was appropriate.  Here, the facts of the present case revealed only a small-scale operation with no international dimensions or other aggravating factors.  An appropriate starting point is 3 years' imprisonment for each false instrument offence, which would be reduced to 2 years' imprisonment to reflect the plea to be served concurrently.

13.As for the offence of “Failing to surrender to custody”, I consider a starting point of 9 months is appropriate and is to be reduced by 1/3 to 6 months imprisonment to reflect her guilty plea.  It being a separate and distinct offence, I order that the sentence is to run wholly consecutively to the sentence of other offences.  In so doing, I have taken into account the principle of the totality of the sentences.

14.I have sympathy for the defendant’s parents who are in need of her care. However the Court of Appeal had said that defendant’s family circumstances were to be disregarded, particularly as the offences were serious such as credit card fraud offences (HKSAR v Shum Chung Wai [2002] HKLRD 81ee p 87E-I). Perhaps it is time the other two younger sisters of the defendant shouldered the responsibility of taking care of the parents.

Order

15.For Charges 2, 3, 6, 7, and 9, the defendant is sentenced to 2 years’ imprisonment for each offence to serve concurrently.

16.For Charge 10, the defendant is sentenced to 6 months’ imprisonment to serve consecutively to all other charges.

17.The total sentence is therefore 2 years and 6 months’ imprisonment.