HKSAR v. HUNG SHU WING

DCCC 512/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 512 OF 2014

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Reasons for Sentence

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1.  The defendant, Hung Shu-wing, pleaded guilty before me to one charge of “Using a False Instrument” (Charge 1) and one charge of “Possessing False Instruments” (Charge 2).

2.  Both offences took place on the 11th day of April 2014.  At around 3.30 pm on the day in question, the defendant entered Fortress Shop, No. 418, Level 4, Grand Century Place, No. 193 Prince Edward Road West, Mongkok.  The defendant picked two iPhone 5S mobile phones (worth $11,176 in total) and one Apple MacBook computer (worth $8,488).   

3.  The defendant took out an American Express card, the subject matter of Charge 1, and handed it to the cashier of the shop.  The cashier found the surface of the credit card to be rough and its words unclear.  He suspected it to be a false instrument.  The cashier thus called American Express to inquire.  He was informed that the embossing name of the credit card was different from that of the genuine cardholder.  The case was reported to the police.

4.  A police officer arrived at the shop.  Upon enquiry, the defendant claimed that he used the forged card as he had no money.  Upon search, two American Express Cathay Pacific cards, the subject matter of Charge 2, were found in a cigarette box in the left breast pocket of the defendant’s shirt. 

5.  The police officer then arrested the defendant.  Under caution, the defendant admitted that he was introduced to one “Wah Jai” to get the forged cards in Sheung Shui, that he would use the forged cards to buy things and that he would sell the things bought to obtain money.

6.  In the subsequent cautioned interviews, the defendant admitted under caution that he got the forged cards from “Wah Jai”, all three cards belonged to the defendant and that he had used forged credit card to buy in Fortress.

7.  The aforesaid forged credit cards were later examined by a senior special agent of American Express International Inc.  He confirmed all three cards were forged credit cards.  The potential loss from each of the cards is US$7,000.

8.  At the material time, the defendant used the subject matter of Charge 1, which was and which he knew or believed to be false, with the intention of inducing the cashier to accept the same as genuine, and by reason of so accepting it to do or not to do some act to her own or any other person’s prejudice.  As for Charge 2, the defendant had in his custody or under his control two forged credit cards, the subject matter of Charge 2, which were and which the defendant knew or believed to be false, with the intention that he or another person would use them to induce somebody to accept them as genuine, and by reason of so accepting them to do or not to do some act to his own or any other person’s prejudice.

9.  The defendant has a total of six previous convictions recorded against him.  In 2008, he was first convicted of a charge of theft and was fined by the court.  In August 2013, the defendant was convicted of one count of obtaining property by deception and was sentenced to 2 months’ imprisonment.  In November 2013, the defendant was convicted of one count of fraud, one count of using a false instrument and one of possession of false instruments.  He was given a concurrent term of 4 months’ imprisonment for each charge.  In December 2013, the defendant was sentenced to 6 weeks’ imprisonment for an offence of theft.

10.  The defendant is now 55 years old.  He received education up to Form 6. 

11.  Mr Yuen in mitigation told me that the defendant divorced in 2004.  All his three daughters are grown-up.  Mr Yuen told me before 2008, the defendant worked as a real estate agent.  He was convicted of an offence of theft in 2008, and because of that, he could no longer work as an estate agent.  Since then, the defendant could only work as a waiter or cleaning worker in restaurants. In 2013, the defendant committed a series of offences.  He acted as an estate agent and deceived some of his friends or clients.  He was sent to prison for these offences. 

12.  The defendant committed the present offence after his release from prison.  Mr Yuen told me the defendant needed money to pay for his rent and food.  He obtained the forged credit cards from the person Wah Jai.  The defendant is now remorseful and he feels sorry for what he had done.

13.  Mr Yuen submitted a mitigation letter written by the defendant.  Mr Yuen submitted that the defendant acted alone in this case, he was not a party to a criminal syndicate, and the crimes he committed were not organised.  Mr Yuen submitted a case, HKSAR v Mah Kah Loon CACC 209 of 2013. 

14.  The applicant in the authority cited by Mr Yuen was charged with four counts of using a false instrument and one charge of possessing a false instrument.  The applicant received a total term of 2½ years’ imprisonment.  In sentencing the defendant, the sentencing court found that the applicant played an active though not the leading role in a medium-sized forged-credit-card operation.  The operation clearly had an international dimension as the applicant had travelled to Hong Kong to commit the offences.  The Court of Appeal observed in paragraph 26 of the judgment:

“The argument advanced by the applicant has no merit and, in fact, the applicant is fortunate his sentence is not longer. Had the prosecution charged the applicant with a single offence of conspiracy to use false instruments, the argument being advanced would not be available to the applicant. No complaint could have been made of the judge’s assessment that this was a medium-sized credit card fraud or that 4½ years’ imprisonment was an appropriate starting point for such a fraud. Had that happened, the applicant would now be serving a sentence of 36 months’ imprisonment instead of the 30 months he received.”

15.  In the case Tu I Lang [2007] 2 HKLRD E8, the applicant pleaded guilty to one charge of using a forged credit card and one of possessing two forged credit cards.  The sentencing judge adopted a starting point of sentence of 4 years’ imprisonment for each offence, reducing each sentence to 32 months’ imprisonment to reflect the applicant’s plea of guilty.  The Court of Appeal reduced the sentence imposed in respect of each offence to one of 2 years’ imprisonment to be served concurrently.  The Court of Appeal observed:

“It is equally true that in a number of other cases involving the simple possession or use of a small number of credit cards, this court has approved starting points of sentences of 3 years’ imprisonment, where the operation involved can be fairly described as small-scale.”

16.  The Court of Appeal further observed in paragraph 9 of the judgment:

“In HKSAR v Lau Pui Hang, (unreported) CACC 393 of 2003, this court differently constituted concluded that in circumstances such as those before it where only two credit cards were involved and the operation could be described as relatively small-scale, falling below the ‘medium-sized operation’ described in Chan Sui To, a starting point of 3 years’ imprisonment was appropriate: see also HKSAR v Watt Siu Hung, CACC 93 of 2001 where the offences concerned the use of two forged credit cards and the court accepted it was ‘a relatively minor credit card fraud case’, that case being approved in HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517. Small-scale credit card offences cannot be subjected to strict guidelines. That is because the facts of such offences can vary significantly in a number of ways, the number of cards possessed or used being perhaps the most obvious factor.”

17.  In sentencing the defendant, I have borne in mind the facts of this case, the number of forged credit cards used by the defendant, the number of forged credit cards found in the defendant’s possession, the potential loss from each of the forged credit cards, all the matters urged on the defendant’s behalf by Mr Yuen and what the Court of Appeal said in Tu I Lang. 

18.  In my judgment, a starting point of 3 years’ imprisonment is appropriate for Charge 1 and 2, and I take that as the starting point for Charge 1 and Charge 2 respectively.  The defendant pleaded guilty to the offences.  He is entitled to the customary one-third reduction.  For the reasons given for Charge 1, I sentence the defendant to 2 years’ imprisonment.  On Charge 2, I sentence the defendant to 2 years’ imprisonment.

19.  Bearing in mind the totality principle, I order that the terms of imprisonment for Charge 1 and Charge 2 are to run concurrently with each other.