HKSAR v. Lam King Yin

DCCC 128/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 128OF 2011

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Reasons for Sentence

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Charges and facts

1.The defendant, Lam King Yin, was carrying some clothes and accessories with a male in Tsimshatsui when stopped by the police for enquiries.  He possessed a number of sales slips and a forged credit card in the name of “Yeung Nga-yin”. 

2.After arrest and caution, he said that he had picked it the card at the roadside in Mongkok.  The items were purchased by himself from 3 shops in Tsimshatsui earlier on the same day by using the forged credit card (Charges 1 – 3) and the male was not privy to the offences. 

3.The police contacted the shops, which recalled the transactions and put the value of the goods at $2,093.40, $672.30 and $5,653 respectively, coming up to $8,418.70 in total. 

4.The government forensic scientist confirmed that the card was forged. The police found that the true owner of the card was Ng Choi-yuk Theresa, who had kept her card at all material times. 

Personal background and mitigation

5.He is now 39 years of age.  He was educated up to primary school level. He claims to have last worked as an escalator technician.  His present wife is currently pregnant.  She is in a stable condition despite two miscarriages.  He has a daughter from previous marriage.  He has 19 previous convictions but none similar to the present offences.   

Sentencing principles

Credit card fraud sentences

6.In HKSAR v Cheng Sui-to [1996] 2 HKCLR 128, Yang CJ stated that a sentencing judge had to consider at least the following 5 factors before deciding the level of sentence for credit card fraud: 

(1) The size of the operation eg whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards.

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

(3) Whether there is an international dimension.

(4) Whether the accused played a major role, eg 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.

(5) Whether there is a plea of guilty.

7.There are no sentencing guidelines.  For a small-scale operation with no sophisticated planning or international element, starting points of between 2 ½ years and 3 years had been customarily affirmed on appeal (eg HKSAR v. Watt Siu Hung CACC 93/2001; HKSAR v. Yim Wai Ling, William CACC 35/2004; HKSAR v. Yau Hoi Shan Shanly CACC 209/2006; HKSAR v. Kwan Po Keung [2012] 2 HKLRD 12).

Failing to surrender to custody

8.The maximum statutory sentence for failing to surrender to custody is 12 months’ imprisonment on indictment.  The customary starting point in the District Court is 6 months (eg HKSAR v. Yip Kwok-to CACC 352/2004; HKSAR v. Ko Chun Hung CACC 71/2007).  In HKSAR v. Lam Kin Chung CACC 27/2007, a starting point of 9 months was affirmed on appeal where the defendant had absconded for 9 years. 

Quantum of discount for late pleas of guilty

9.Where the defendant has absconded from the trial of the originating charges but pleaded guilty only when subsequently arrested, he is not given the usual one-third discount. 

10.In Ko Chun Hung (above), the discount was only 1/6.  In affirming the lower discount, Yeung JA explains the position as follows:

24. We accepted that having been sentenced to 4 months’ imprisonment for absconding and then not being granted the full one-third discount for pleading guilty again because of absconding, the applicant appeared to have been punished twice for the same facts. However, there was a logical foundation for it.

25. By absconding, the applicant had committed a fresh offence to be punished separately. By absconding, the applicant also surrendered the administration of justice more costly and time-consuming, and the judge was entitled to exercise his discretion by reducing the percentage of discount that he would otherwise obtain.

11.There were a host of cases cited in the same judgment where the discount was lower than 1/3.  In Secretary for Justice v. Chow Wing Wah CAAR3/1998, a discount of 27% was affirmed on appeal.  In HKSAR v. Chiang Tsui-yan CACC 188/1999, a discount of 19.5% was affirmed on appeal.  In HKSAR v. Chan Ka Po CACC 29/2000, a discount of 20% was affirmed on appeal.  In HKSAR v. Lam Lai Chu, Patsy CACC 56/2003, a discount of 25% was affirmed on appeal.  In Yip Kwok-to (above), a discount of 22% was affirmed on appeal.   In HKSAR v. Kwok Shiu To [2006] 2 HKLRD 272, a discount of 20% was affirmed on appeal.   

Sentencing this defendant

12.The credit card frauds featured a small-scale operation in a single shopping binge with no international element. I take a starting point of 30 months for each of the 3 charges.  Owing to his absconding from trial, I do not give a 1/3 discount for the pleas of guilty.  I pitch it at 20%.  There are no other mitigating factors.  The sentence is 24 months each to be wholly concurrent.

13.I take a starting point of 6 months for the absconding charge.  I give a 1/3 discount for the plea of guilty.  There are no other mitigating factors.  The sentence is 4 months.

14.The 24 months on Charges 1 – 3 shall be consecutive to the 4 months on Charge 4.  The overall length shall be 28 months.   

Please refer to CACC328/2012 for the relevant appeal(s) to the Court of Appeal.