HKSAR v. HO YUNG YIN

 DCCC21/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 21 OF 2010

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Reasons for Sentence

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1.        The defendant pleaded guilty to 3 offences, namely 1 charge of "Possessing false instruments" (Charge 1) and 2 charges of "Using false instruments" (Charges 2 and 3).

Charge 1

2.        In the afternoon on 14 October 2009, the defendant intended to purchase goods from TSL Jewellery Shop ("TSL"), a consignment counter located in the JUSCO Department Stores at Whampoa Garden, Hung Hom.  Before giving out the goods, TSL first issued an invoice to the defendant.  He was supposed to take the invoice to a JUSCO cashier counter to settle payment and then return to TSL with a receipt to collect the goods.

3.        The defendant presented credit cards at a JUSCO cashier counter to settle payment.  Payment was rejected, but he did not return to TSL.  The defendant's unusual behaviour caught the attention of a duty security guard of JUSCO, Mr. WONG Chun-tat (PW1).  PW1 reported the matter to the Police and followed the defendant.

4.        Police officers attended the scene and joined PW1 in following the defendant.  The defendant was seen trying on shoes together with a male named CHENG in Sportshouse, a shop located at Fashion World of Whampoa Garden.  Afterwards, the defendant approached the cashier counter in Sportshouse.  When the defendant and CHENG were leaving the shop, they were intercepted by the police officers.  Upon search, a total of 6 credit cards (as particularized in Charge 1) were found in the defendant's rear trouser pocket.  A sales receipt of Sportshouse showing a rejected transaction in the sum of $1,509 was found in the defendant's front trouser pocket.

5.        Under caution, the defendant admitted that he bought the 6 counterfeit credit cards at $5,000 in Mongkok the night before.  It was the first time he used forged credit cards.  If payment by one card were rejected, he would try another one.  However, all his attempts to use the cards failed.  In order to get back his credit cards from the shops, he pretended to pay by EPS using his own ATM card.  But the payment was also rejected since there was no money in his bank account.

6.        Government Chemist examined all 6 credit cards against the control samples provided by the respective card institutions.  It is confirmed that they are counterfeits. 

Charge 2

7.        Police investigation revealed that at about 1:45 pm on 14 October 2009, a male customer wanted to purchase 3 gold rings from TSL.  An invoice for the sum of $8,500 was issued to the customer who then took it to settle payment at a JUSCO cashier counter.  But the customer did not return.

8.        At about 2:10 pm, a male customer approached Madam TAM Chui-han (PW3), a cashier of JUSCO, for payment of a TSL invoice in the sum of $8,500.  The customer first presented a BankAmericard VISA card as particularized in Charge 2 for payment but it was rejected.  He then presented an ATM card to pay by EPS and it was rejected.  Then he presented a PLATINUM VISA card as particularized in Charge 2 and it was also rejected.  Finally, he presented another ATM card to pay by EPS and it was rejected as well.  He took back all the cards and left.  That customer was the defendant.

Charge 3

9.        At about 3:00 pm on the same day, 2 male customers went to Sportshouse.  After trying on some shoes, one of them approached Madam NG Yuk-ting (PW4) for payment of 2 pair of trainers in the sum of $1,509.  That customer first presented a CapitalOne Platinum VISA card as particularized in Charge 3 for payment but it was rejected.  He then presented a Citibank MasterCard card as particularized in Charge 3 and it was also rejected.  Finally, he presented an ATM card to pay by EPS and it was rejected as well.  He took back all the cards and left.  That customer was the defendant. 

Mitigation & Sentence

10.       The defendant is now 19 years old and has a clear record.  He was 18 when he committed the present offences.  Owing to his age and clear record, I called for a suitability report from Detention Centre, Rehabilitation Centre and Training Centre.  He is found mentally and physically fit for Rehabilitation Centre and Training Centre.

11.       According to the report, the defendant left school in 2007 without completing F.4.  He worked intermittently as a bartender, waiter and technician earning around $5,000 to $7,000 per month.

12.       I note that 4 out of the 6 counterfeit credit cards are in the defendant's name and the remaining 2, in the name of another person.  The defendant admitted under caution that he bought those 4 credit cards from someone at $5,000.  His lawyer Mr. CHEUNG said the same in mitigation and added that the 2 forged credit cards which do not bear the defendant's name were given by the seller as a bonus.

13.       In order to obtain forged credit cards bearing the user's name, some advance planning must be required.  Based on the salary of the defendant's last job as revealed in the report, his financial ability to pay $5,000 for the fake credit cards is highly questionable.  Furthermore, he was dismissed from his last employment in July 2009.  In other words, he had been unemployed for about 3 months at the time of the offences.  If he was in need of money at the material time, how could he come up with $5,000?  And if he could come up with $5,000, he would not be in need of money.  I have serious doubts about the defendant's story that he bought 4 forged credit cards at $5,000. 

14.       Although there is no evidence proving so, all the information before me carries a strong flavour of the defendant being manipulated by a counterfeit credit card syndicate.  In any event, I should not speculate on this issue.  I will sentence the defendant based only on the seriousness of his criminal acts.

15.       According to the relevant sentencing authorities cited in Sentencing in Hong Kong (5^th edition), credit card offences are serious and must be deterred.  Even a small scale credit card fraud with small losses by an offender who is not alleged to be part of a larger syndicate can attract 3 years imprisonment on a guilty plea.  In HKSAR v SUEN Tat-yeung, Ricky HCMA 709/2006 (unreported), the appellant tried to use a forged credit card to purchase a pair of gold bracelets worth $19,800 in a shop in Disneyland.  He pleaded guilty and was sentenced to 16 months imprisonment.  The sentence was upheld by Deputy High Court Judge Barnes (as she then was) on appeal.

16.       A clear message must be conveyed to the general public that "credit card fraud" is a serious crime and that offenders would be punished by a substantial prison term.  However, in this case, I cannot overlook the defendant's age and his need for rehabilitation.  I note that all the attempts made by the defendant to use the forged credit cards were unsuccessful.  After careful consideration, I am prepared to accept the Probation Officer's recommendation.  Correctional institutions such as Rehabilitation Centres and Training Centres exist for the benefit of young offenders.  These institutions play an important role in our penal system.  I have decided to make a Rehabilitation Centre Order, which will be the sentence for Charges 1 to 3.