HKSAR v. CHAN KIN FUNG

DCCC 588/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 588 OF 2009

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to two charges of using a false instrument, namely forged credit cards, contrary to section 73 of the Crimes Ordinance, Chapter 200.

2.  Full particulars of the offences are set out in the facts admitted by the defendant.  Briefly on the 2nd December 2007 the defendant used a forged credit card in his name to buy a mobile phone, valued at $4,980, from Direct Sales Centre in Mongkok.  When the sales staff checked with the credit card centre he was told the card was a forgery.  When the staff refused to give the defendant the card the defendant called 999 with his mobile phone claiming the staff would not return the card to him.  The defendant however left the centre before the police arrived.

3.  Ten days later the defendant used another forged credit card, also in his name, to successfully buy an electronic dictionary, valued at $3,390, from Joint Publishing in Mongkok.  After the transaction the staff remembered the name of the defendant had appeared on a company circular of suspected cases of using forged credit cards.  The staff then checked with the credit card centre and discovered the card used was a forgery.

4.  The matter was reported to the police who traced the mobile phone number used on the 2nd December 2007 to call 999.  The defendant’s identity was revealed and he was subsequently located and arrested on the 28th April 2008.  Under caution the defendant admitted using the two forged credit cards, which he had bought at a cost of $500 each from a friend called “Ah Cheong”.

5.  I have carefully considered everything said by Miss Cheng together with the letters submitted on behalf of the defendant. 

6.  In passing sentence I take into account the factors which a sentencing judge will need to consider, as set out by the Court of Appeal in R v CHAN Siu-to [1996] 2 HKCLR 128, including the size of the operation; the planning that had gone into perpetrating the fraud and whether the accused played a major role.  The factors were not intended however to be exhaustive but provide valuable assistance to the court. The courts have repeatedly stressed that deterrent sentences are to be imposed.  Whilst the amounts involved in each charge are relatively small the amount is only one factor to be considered and not the most important factor.  The potential loss rather than the actual loss is more important in considering sentence. 

7. Where the facts of the offence point to a small unsophisticated operation, involving one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of 3 years or less is appropriate (see HKSAR v TU I Lang CACC 464/2006 and HKSAR v WONG Chin-hang CACC 409/2008).  In HKSAR v AU Yeung Shu-sang CACC 474/2006 the Court of Appeal said where the defendant was not acting alone and was obviously part of a wider organisation that had caused cards to be printed specifically for him a starting point of 3 years and 6 months imprisonment was appropriate. 

8. On the facts I accept the defendant was involved in what can be described as a small-scale operation.  However he was obviously part of a wider organisation that caused cards to be printed specifically for him.  I am satisfied that a starting point of 3 years imprisonment on each charge is appropriate. Giving the defendant full credit for his pleas of guilty he is sentenced to 2 years imprisonment on each charge. 

9. The defendant is currently serving a total of 4 years and 2 months imprisonment imposed in July last year in DCCC 278/2008 for two offences of theft and two offences of fraud committed in 2006 and two offences of using a false instrument and one charge of possession of a false instrument committed in 2008.  These charges involved three different forged credit cards.

10. The defendant was not arrested for the present offences until April 2008 and investigation was not completed until November 2008 and therefore could not be heard at the same time as the other offences. 

11. The issue for me to determine is the totality of sentence to be served by the defendant.  The two offences before this court are separate and distinct involving different cards and committed on different dates. Subject to totality consecutive sentences are therefore appropriate.  Equally the two offences are separate and distinct from the offences in 2006 and 2008.  Although they are of the same nature as the 2008 offences, again they are different cards.  The defendant in total over a period of a few months had used four different cards and possessed a further forged credit card.  No doubt the defendant would have continued using forged credit cards had the police not apprehended him.

12. I have had the opportunity of reading the reasons for sentence of Deputy Judge Glass and the reports available to the judge.  For the credit card offences the Deputy Judge took a starting point of 3 years and  6 months imprisonment, which he increased to 4 years by reason of those offences being committed while on court bail for the 2006 offences.  I am satisfied that had all the credit card offences been heard together an overall starting point for five forged credit cards would have been 4 years imprisonment, which again would have been increased by 6 months by reason of the 2008 offences being committed whilst on court bail, making an overall starting point for the credit card offences of 4 years and    6 months imprisonment.

13. What this means is that the overall starting point for the credit card offences is increased by 6 months.  Giving full credit to the defendant for his pleas of guilty means he is to serve an additional 4 months imprisonment. 

14. The defendant is sentenced as follows:

Charge 1 – 2 years imprisonment; and

Charge 2 – 2 years imprisonment concurrent to charge 1

I order 4 months consecutive and 20 months concurrent to the sentence the defendant is now serving.  I am satisfied a total sentence of 4 years and 6 months imprisonment, properly reflects the defendant’s criminality on all charges.