HKSAR v. CHUA BENG-LENG AND ANOTHER

DCCC162/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 162 OF 2009

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Reasons for Sentence

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1.  The 1st defendant pleaded guilty to using a false instrument in Charge 1, possession of a forged travel document in Charge 3 and possession of false instruments in Charge 4.

2.  The 1st charge related to the purchase of a Cartier watch at the Duty Free Shop in Tsim Sha Tsui using a forged MasterCard. Charge 2 related to possession of a forged Singapore passport in the same name as the forged credit card used and the four other forged cards in his possession. Sorry, it should be the 3rd charge that relates to the forged passport. And then the 4th charge relating to the 1st defendant related to four other fake credit cards in his possession.

3.  The 1st defendant is a Singaporean man, divorced with two children. He was in debt due to gambling and he was involved in this credit card fraud to repay his gambling debts. This case has an international dimension. Credit cards were involved in this case. The forgery was not of exceptional good quality.

4.  The 1st defendant pleaded guilty.

5.  Credit card fraud and possession of forged passports both are very serious offences. Regarding credit card fraud cases, sometimes prosecution, when such cases are prevalent, I think they are prevalent, would ask to enhance sentence. No enhancement is applied for in this case.

6.  With such cases, the Appeal Court has, I think repeatedly said, it should start off with at least 3 years’ imprisonment. So 3 years is not the norm but that is the minimal starting point. There were higher starting points adopted in the District Court, we could see some of them in appeal cases and of course those that were exceptionally high were reduced to 3 years or 3½ years as a starter. But definitely that is not a straitjacket, it all depends on the seriousness on the facts of each case.

7.  Here we have one credit card that had been used to make a purchase and four other credit cards kept in the 1st defendant’s possession. In the circumstances I think it is appropriate to adopt 3½ years as the starting point. And the same reasoning applies to the 2nd defendant as well.

8.  As for the possession of forged passport, 18 months’ starter in the circumstances of this case I would think is appropriate. If the possession of the passport was intended for immigration purpose or purposes, I would not be hesitant to adopt a higher starting point of, say, 27 months.

9.  So, for the 1st defendant, for his plea of guilty, he should be given a full one-third discount and that is the only mitigation I could see in his case. For the 1st charge, I would sentence the 1st defendant to 28 months’ imprisonment, on the 3rd charge, 12 months’ imprisonment and on the 4th charge, 28 months’ imprisonment.

10.  I order sentence in Charge 1 and Charge 4, the credit cards fraud, to be served concurrently and having considered totality, I order 4 months of the 12-month sentence in the 3rd charge to be served consecutively to the sentence in Charge 1 and 4 and the remainder to be served concurrently. To make it easier for the defendant to understand, that would mean the 1st defendant has to serve a total of 32 months’ imprisonment.

11.  As for the 2nd defendant, I mentioned and I repeat, the same principle applies as in the case of the 1st defendant. The 2nd defendant committed these offences out of or in relation to his drug addiction. He is now 29, a single man from Melbourne in Australia and I was told that he had a troubled youth and particularly when he started to have his drug-taking habit.

12.  So for the 2nd defendant if he wants to turn over a new leaf, he must use all of his resolve to get rid of his drug addiction. He had been in Siu Lam Psychiatric Centre in Hong Kong for the past five months, in a way I am told that he was subject to more restriction, and unfortunately during this period his father fell seriously ill and eventually passed away. That is very sad and unfortunate. And he had only been able to talk to his father over the phone for very short periods on three occasions.

13.  But as for the 2nd defendant, again the only mitigation I could see in his case is his plea of guilty, and for that he should be given a full one-third discount in sentence. I hope his time in Siu Lam had been beneficial and the psychiatrists in Siu Lam had taken care of his trouble and his needs.

14.  On Charge 2 and Charge 5, I adopt 3½ years’ imprisonment on each of these charges. After one-third discount, I therefore sentence the 2nd defendant to 28 months’ imprisonment on each of these two charges. I order the terms to be served concurrently. So in total the 2nd defendant has to serve 28 months’ imprisonment.