HKSAR v. CHAN CHI SHING

 DCCC582/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 582 OF 2009

----------------------

----------------------

------------------------------

Reasons for Sentence

------------------------------

1.  Defendant, you have pleaded guilty to two charges before this court.  Both charges relate to forged credit cards.  The first charge is one of conspiracy to forge documents, contrary to sections 71, 159A and C of the Crimes Ordinance, Cap.200.  The second charge is a charge of possessing false instruments with intent, contrary to section 75(1) of the Crimes Ordinance, Cap.200.

2.  The facts of the case are as follows.

3.  At about 2.45 pm on 22 March 2009, a team of police officers were patrolling in the vicinity of Trend Plaza North Wing, Tuen Lung Street, Tuen Mun.  They had seen you and another Chinese male acting suspiciously, they then saw you board a van near the Tai Lee Restaurant. 

4.  The officers approached the van for inquiries and asked you to alight the van for a body search.  Upon search, an officer found on you a Hong Kong ID card issued in the name of Lai Kam-wai and a Capital One Platinum MasterCard issued in the name of Lai, and an HSBC Bank Neyada Platinum Visa Card issued in the name of Lai.

5.  An officer then also searched the van and inside the driver door side-slot in a lai see packet an officer found three other credit cards - one Chase Visa Card issued under the name of Lai, a Bank of America Visa Card issued in the name of Wong Wai-man and an HSBC Bank Neyada Platinum Visa Card, issued again under the name of Wong.

6.  After forensic examination by a Government Chemist, all these five credit cards were found to be forged.

7.  The MasterCard Worldwide confirmed that there were two successful transactions for goods with the Capital One Platinum MasterCard under the name of Lai on 22 March.  They were at the Citi Super Limited Hong Kong for goods in the value of US$779.32, and at City Link Electronics Limited in Mongkok for US$695.46.

8.  The genuine Hong Kong ID card holder Lai was located.  He confirmed that he had lost his Hong Kong ID card on 20 September 2008 in Mongkok and that card you were in possession of was his.

9.  You had given various inconsistent accounts to the police about your possession of these credit cards.  However, eventually you admitted that you had asked a person by the name of Lo Yai Kei to make the two counterfeit credit cards, that is the Capital One Platinum MasterCard and HSBC Bank Neyada Platinum Visa Card, under the name of Lai.  You knew that the other credit cards were counterfeits.  You had intended to purchase goods with the other credit cards that were found in the vehicle, and you had paid $2,000 per card for the manufacture of those two counterfeit cards.

10.  As a result, you were charged under Charge 1 for conspiring with Lo Yau Kei to make the counterfeit credit cards and charged with the second offence of being in possession of the five forged credit cards.

11.  You are 34 years of age and have three previous convictions, your last conviction being in 1998, to which you were sentenced to 13 years and 4 months’ imprisonment for trafficking in dangerous drugs.  You were released from that term in February 2007. 

12.  Your counsel, Mr Peter Wong, has mitigated fully on your behalf today and I have taken all that he had to say in considering sentence upon you.

13.   You are married and have one son who is now aged 11.  Clearly, you have spent in that last term of imprisonment some 9 years in prison. 

14.  You have written in your personal letter to me the circumstances of how you became involved in committing that offence.  Briefly, you were led astray in your youth, you became a triad member, and for that reason you committed that trafficking offence.  Having been released from prison, however, you turned a new leaf and began your own metal business.  I am told you earned about $15,000 a month.  However, there was a downturn in that business and you lost money.  You borrowed money to cover loans and you got further and further into debt.  Then you admitted without much further thought you resorted to gambling to try and repay your debts, which was very foolish, and then you committed these offences to repay those debts, of which you understand now, your stupidity and your greediness.

15.  I am told that your wife, who is present here in court, has been supporting you throughout the long years you have been in prison and will be here for you when you are released again. 

16.  I hope what you have told me in your letter you are sincere about.  You say you will do your best to turn a new leaf whilst you are there and acquire some qualifications so you can come out and support your family.  You have been quite frank with me, saying that you know that a prison term is inevitable, which is correct.  You are still young and you have time to turn a new leaf.

17.  I have been referred to cases by both the prosecution and your counsel.  Those are relevant cases.  Those cases are that of Tu I Lang, CACC464/2006; HKSAR v Cheng Sui Yin, CACC468/2005; and HKSAR v Yau Hoi Shan Shanly [2007] 3 HKC at 284.  Of course, the leading case in respect of credit card forgery is one of R v Chan Sui To and Another [1996] 2 HKCLR at 128. 

18.  Mr Wong has very rightly accepted and conceded that this is not a case whereby you are only a courier.  He has taken me through the various cases and their sentences and has urged me to look at this with leniency, that this is not the worst case of its kind and that there are only some five credit cards involved.

19.  In sentencing defendants for credit card frauds, it is clear that various factors need to be taken into account.  That is the following:  the size of the operation, whether it involved large sums of money, or whether it concerned a large number of persons, or forged credit cards. 

20.  In this case, the sum of money was not large.  What was spent on the credit card was $11,400 converted into Hong Kong currency.  There was not a particularly large number of cards but more than minimal in that there were five forged credit cards involved but, of course, in this case, although only one credit card was used, there was in respect of the four other cards a potential for further losses.

21.  The second factor is the planning that had gone in to perpetrating the fraud, whether it was elaborate or simple, whether technical skills were used, and to what extent, whether there was an international dimension, whether the accused played a major role, e.g., running a syndicate, engaging in actual manufacture, organising the use of forged credit cards, or whether he was a mere cog in the wheel as a courier or a custodian or keeper, and whether there was a plea of guilty.

22.  In this case, I found that you were not a courier or custodian or keeper.  There is evidence linking you to a larger operation, that is that you had actually known who to go to to make or manufacture these counterfeit cards, so there was a link between you and the manufacturer of these cards.

23.  I accept, however, there was no international dimension here necessarily, although the cards were purported to come from different countries, I have taken into account your plea of guilty.

24.  Taking into consideration all these factors, I consider that a starting point of 4 years’ imprisonment is appropriate for both Charges 1 and 2.

25.  The charges in respect of Charge 2 relate to the same card in Charge 1, so they are not distinct and separate offences.  In the circumstances, I shall order both charges to run concurrently to each other.  You have pleaded guilty.  I give you full credit for your plea of guilty and reduce that 4 year term to one of 2 years 8 months’ imprisonment, to which you are so sentenced.