HKSAR v. Fung Kai Yiu

DCCC 686/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 686 OF 2013

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Reasons for Sentence

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Charges and facts

1.The defendant pleads guilty to using a false instrument, ie 1 false credit card (1st Charge) and possessing false instruments, ie 5 false credit cards (2nd Charge).

2.On 11 May 2013, he purchased a gold wrist chain priced at $16,450 of TSL shop at Aeon Store.  The first and the second credit cards (which he later admitted to the police to be American Express Cards, Exhibits 2 and 5) he produced for payment were not approved by the card terminal.  He then produced a third credit card, a CitiBusiness Visa Card (Exhibit 1).  The transaction was approved.  Shortly after leaving the store, he was intercepted by the police.  Apart from the gold wrist chain and the transaction records, he had 5 credit cards found on him, all in the name of another person purportedly issued by the following credit companies:

(1) Exhibit 1, CitiBusiness with an unknown potential for loss;

(2) Exhibit 2, American Express with a potential for loss of US$5,000;

(3) Exhibit 3, Diners' Club with a potential for loss of 4,000,000 Yen (or approximately HK$315,000);

(4) Exhibit 4, ANZ with an unknown potential for loss;

(5) Exhibit 5, American Express with a potential for loss of US$5,000.

3.After arrest and caution, he said he had picked up the credit cards by chance.  American Express found the 2 American Express cards to be forged.  Forensic examination found the 3 other cards to be forged.   

Personal background and mitigation

4.The defendant is 34 years of age.  He was a casual worker before arrest.  He had 26 records, 21 of which were for dishonesty but none for credit card fraud.  I do not aggravate his sentence because of his records.  His counsel has cited the case of HKSAR v Tu I Lang CACC 464/2006, which pointed to a starting point of 3 years. 

Credit card fraud sentences

5.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 e.g. 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, 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.

(5) Whether there is a plea of guilty.

6.There are no sentencing guidelines. For a straightforward small-scale operation with no international element, starting points of near or up to 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 ShanlyCACC 209/2006; Tu I Lang (above), HKSAR v Kwan Po Keung [2012] 2 HKLRD 12).

7.In HKSAR v Ng Swee-thiam [2000] 1 HKLRD 772, Mayo VP said that:

34. The question of the amount of losses which may be proved may pale into insignificance when consideration is given to the potential for losses in the future.

35. In the present case the only limit on the extent of losses to be incurred was the capacity to produce and use the false cards and the amount of time before the miscreants were caught.

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

Sentencing this defendant

8.It was a small operation with 5 cards but the potential for loss was over HK$390,000 in total.  The 2 charges pertain to the same credit card operation.  I take 3 years and 3 months as the starting point for each charge.  One-third off for the plea of guilty, the sentence is 2 years and 2 months.  There are no other mitigating factors.  The sentences shall be concurrent.