HKSAR v. LIU CHEUK WAI

DCCC1068/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1068 OF 2011

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Reasons for Sentence

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1.  The defendant has pleaded guilty today to:

(1) one count of using a false instrument;

(2) three counts of attempting to use a false instrument;

(3) one count of possessing false instruments.

2.  All the false instruments refer to fake credit cards, a total of seven.

3.  Lastly, he has pleaded guilty to one charge of resisting police officers in the execution of their duties, contrary to section 63 of the Police Force Ordinance, Cap.232.

4.  I note this is what could be described as the less serious charge of resisting police officers.  I note the maximum penalty for that section 63 offence is 6 months’ imprisonment.

5.  The facts of this case are very straightforward.

6.  The 1st and 2nd charge relate to an incident on 25 May this year.  The defendant entered a Jusco department store in Tuen Mun and successfully bought a Nokia N8 mobile phone valued at $3,688 with the first fake credit card.

7.  He rather foolishly returned 10 minutes later - I assume because he was successful the first time - and tried to buy a second phone from the same salesperson.  This attempt to buy a Sony Ericsson valued at $1,580 was unsuccessful.

8.  This time, the saleslady felt suspicious and asked the defendant to wait so she could check the credit card.  When she refused to return the credit card at the defendant’s request, he fled the scene.

9.  Some one month later, on 27 June, the defendant committed Charges 3, 4, 5 and 6.  He entered a computer shop in the Golden Computer Arcade in Sham Shui Po and tried to buy a PSP game console valued at $1,380.

10.  He gave the shop owner a second fake credit card, but the transaction was not successful.  The defendant then produced a third fake credit card to the owner and, once again, it was unsuccessful.

11.  Quite rightly, the owner was suspicious and asked the defendant straight out were they fake credit cards.  The defendant immediately fled the scene.

12.  This owner chased the defendant, which alerted the attention of two off-duty police officers.  They joined in and eventually subdued the defendant, but not without a struggle, hence Charge 5.  They both suffered minor injuries.

13.  Under caution, the defendant made an admission.

14.  At the police station, the last four fake credit cards were found in the defendant’s wallet.  All these credit cards are printed with the defendant’s Chinese name.

15.  Under further caution, the defendant admitted that he knew they were fake.  He explained how and why and from whom he got these cards.

16.  The defendant is not a man of clear record.  He has many previous convictions, mainly for theft and dangerous drugs.  The defendant has been in and out of either prison or Drug Addiction Treatment Centres since about 2003.

17.  I have heard the defendant’s background from counsel and his antecedents. 

18.  The defendant was brought up by his grandparents from a young age.  The defendant quite openly admits he has disappointed his grandparents, but his grandmother is here to support him despite that.

19.  All credit card frauds are serious offences, and prison sentences of certain lengths are inevitable.

20.  I have considered the authority of the R v Chan Sui To [1996] 2 HKCLR 128 at page 134, which sets out relevant factors for the court to consider when sentencing, including:

(1) the size of the operation, which refers to the number of persons involved, the number of fake cards, as well as the amount of loss suffered;

(2) secondly, whether there is any international dimension;

(3) thirdly, what is the defendant’s role in this operation;

(4) fourthly, whether the planning behind the operation is elaborate or simple;

(5) lastly, whether the defendant pleads guilty or not. Plea of guilty indicates remorse.

21.  Credit card fraud has been described in the past by the higher courts as being an insidious poison that erodes the credit card system and damages Hong Kong’s standing in the international financial community.  Banks and financial institutions suffer billions of dollars of loss each year around the world.

22.  I have also, besides the previous authority mentioned, referred myself to other authorities, including HKSAR v Poon Cho Shu, referred to by prosecution counsel, CACC 55/2000; secondly, HKSAR v Tu I Lang, CACC 464/2006; and lastly, HKSAR v Cheung Ka Wo Johnny, CACC 136/2001.

23.  In this case here, the defendant has seven credit cards.  The actual loss suffered is $3,680.  However, there is always potential for future loss, as the defendant had further cards to try.  The defendant acted alone, it seems, nor can I see any international element.  There is no elaborate planning, but the cards were all in his name.

24.  A 3-year starting point would be appropriate in these circumstances, but here, there clearly has been two separate occasions: firstly, 25 May, and secondly, 27 June, one month later.

25.  One month later, the defendant decides to try again to use other cards even though he was so nearly caught only one month earlier.

26.  I have considered mitigation, the defendant’s background, his plea of guilty, and all the facts I consider relevant that I have referred to to assist me in sentencing.

27.  Yes, defendant, please stand up.

28.  Now, for Charges 1 and 2, the offences committed on May 25, I will take a starting point of 3 years’ imprisonment.

29.  You are entitled, of course, to a discount of 1 year for your plea.

30.  For Charges 3, 4, 5 and 6, as I have said, they were committed one month later and involve further cards.

31.  For Charges 3, 4 and 6, the offences relating to the cards, I will take a starting point of 3 years and 6 months.

32.  You have pleaded guilty.  You will be entitled to a discount of one-third; that is, 14 months.

33.  For Charges 1 and 2, I impose a sentence of 2 years’ imprisonment.

34.  For Charges 3, 4 and 6, I impose a term of imprisonment of 2 years and 4 months.

35.  For Charge 5, resisting police officers, I impose a sentence of 2 months.

36.  All six of the charges will be served concurrently.

37.  That means a total of 2 years and 4 months.