HKSAR v. Van Leuven Alan Edward

DCCC 110/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 110 OF 2013

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Reasons for Sentence

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1.The defendant pleaded guilty to 10 charges of obtaining property by deception and a charge of possessing a false instrument.

2.The facts were that at the small hours of 20 September 2012 the police found the defendant acting suspiciously at the junction of Chi Kiang Street and To Kwa Wan Road, Hung Hom.  Upon stop and search, the defendant was found in possession of 2 forged American Express cards in his name and also some electronics products.  The defendant said he had purchased the goods with one of the cards and pointed to a nearby woman whom had given him the said card.

3.In the video recorded interview the defendant further admitted that the said 2 credit cards were forged.  One was given to him two weeks ago and the other 3 days thereafter.  He was given shopping lists to make purchases and the items should be given to another person and he would be given compensation in Hong Kong dollars.

4.The Government Chemist and staff from American Express International Company confirmed that the above 2 cards were forged, and it was discovered that between 10 September and 19 September 2012 one of the said credit cards had been used fraudulently for purchases on 10 occasions from various merchants for electronics items including mobile phone, tablet computers, garments and phone case, from which the total value was about $41,000.  In fact, CCTV from some merchants also captured the image of the defendant.

5.The defendant is aged 42, an American national.  He has 5 previous convictions, 4 related to possession of prohibited weapon and arms or ammunition without licence.  He had been sentenced to a total of 16 months from January 2010, and the last one in February 2012 for criminal damage where he was sentenced to 14 days’ imprisonment.

6.Mr Kelly submits that the defendant was originally a carpenter and subsequently a designer.  He met a lady in America in 1990 and later came to Hong Kong in 2002.  Currently the defendant was subject to a deportation order imposed in 2010, but now pending the determination on his torture claim, he was released on recognisance. 

7.Mr Kelly further submits that basically the defendant was in need of money and that is the reason why he got involved in all these transactions. He also submits the size and the operations were small. There was neither international dimension nor was he the mastermind of the transactions. 

8.Obtaining property by deception through using forged credit cards is a serious offence.  The Court of Appeal in R v Chan Sui To [1996] 2 HKCLR 128 laid down the relevant sentencing principle, and HKSAR v Tu I Lang CACC464/2006, applied and indicated that for the offence pointed to a small unsophisticated operation involving only one or a few forged cards uncomplicated by other evidence linking to a larger operation, a starting point of 3 years’ imprisonment or less would be appropriate.

9.No doubt for the present case, the total amounts were just around $40,000 yet there were a total of 10 occasions.  I assess that for each offence the appropriate starting point is 2½ years’ imprisonment, to be reduced to 20 months upon his guilty plea.

10.As to the charge of possession of forged credit card, the starting point be 18 months, to be reduced to 12 months upon his guilty plea.

11.Lastly, on the totality principle, I consider that the overall sentence for all these offences of 28 months would be appropriate.  I therefore make the following order:

Charges 3, 5, 6, 7 and 8: each 20 months, to run concurrently;

Charges 10, 11, 12, 14 and 15: each 20 months, all to run concurrently but 4 months be consecutively to Charges 3, 5, 6, 7 and 8;

Charge 16: 12 months, from which 4 months be made consecutively to all the above charges;

Total: 28 months’ imprisonment.

12.So defendant, for all the 11 charges, the total sentence is 28 months’ imprisonment.