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DCCC1072/2010
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1072 OF 2010
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HKSAR |
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v. |
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Kikkawa Yasuhiro |
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| Date: |
13 December 2010 at 11.04 am |
| Present: |
Mr Maurice Tracy, Counsel on fiat, for HKSAR
Mr Jeffrey George Fenton, instructed by Messrs Tang Tso & Lau, assigned by the Director of Legal Aid, for the Defendant |
| Offence: |
(1) & (2) Conspiracy to defraud (串謀詐騙) |
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Reasons for Sentence
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1. The defendant has pleaded guilty to two charges of conspiracy to defraud. Both offences were committed in November of 2008, the first offence on 23 November and the second the following day, 24 November. Both offences involved the use of forged credit cards in order to purchase high valued items and jewellery.
2. In relation to the first offence, on the evening of 23 November the defendant and another Japanese male patronized a jewellery shop called the Golden Bauhinia Jewellery Limited which is situated on the Ground Floor of Jordan Road, Yau Ma Tei in Kowloon. Between them, the two gentlemen purchased two gold necklaces and four diamonds to a total value of $289,000. Each of the men produced credit cards and passports which were not in their own names. The men then left the shop after making the purchase.
3. The following day, the two men returned to the same shop. They attempted to purchase items of jewellery worth $304,000. Again they produced forged credit cards. Because some of the credit cards were over the limit, they were not able to purchase all the jewellery they intended to purchase and they left with property worth $154,000.
4. After making enquiries with the relevant card centres, the shop discovered that the information stored in the credit cards was different to the information shown on the credit cards which the defendant had used. A report was made to the police.
5. The credit card payment slips were sent to the Identification Bureau and a fingerprint of the defendant was lifted from one of those slips.
6. The following month the defendant was arrested for other similar offences, and it was whilst he was in custody for those matters that his involvement in these matters became known. He was arrested at Lai Chi Kok Reception Centre on 21 May and initially he denied his involvement in these offences. He was then later interviewed on 30 June and 11 July 2009 and made a full and frank admission of his involvement in these matters.
7. The defendant told the police that in November of 2008 he had come to Hong Kong and was approached by a man called Wong. Wong invited him to use forged credit cards and the defendant provided a photograph for a forged passport to be made. And on 23 November Wong brought along the other Japanese male and supplied them both with forged passports and forged credit cards. The property purchased, according to the defendant, was all handed over to this Mr Wong and he received a reward of $5,000 for each transaction.
8. At the time of the commission of the offences, the defendant had a clear record.
9. In connection with the other matters for which he had been arrested, he appeared in the District Court on 15 July in 2009. For using false instruments, two offences, he was sentenced to 2 years’ imprisonment on each offence, the sentences to run concurrently. For possession of a false instrument, he was sentenced to 2 years 4 months’ imprisonment, to run concurrent with the other two charges. The fourth offence related to possession of forged travel documents, he was sentenced to 12 months’ imprisonment and 6 months of that was ordered to run consecutive to the other sentences. He was therefore ordered to serve a prison sentence of 2 years and 10 months’ imprisonment.
10. The defendant is 40 years of age. He was born in Japan. In relation to this offence, it was urged upon the court that the defendant was not the ringleader. And I also was informed that in relation to his previous sentence, he was due to be released about one month ago.
11. I do not know the value of the goods involved in the previous charges. In this case the value of the property on the 1st charge was $289,000. On the 2nd charge he attempted to obtain property worth $304,000 and in fact obtained property worth $154,000 because of problems with the forged credit cards.
12. I have been referred to the Court of Appeal decision in the case of HKSAR v Chau Yiu Cheong, CACC363/2008. The court in that case referred to an earlier decision of the court in the case of R v Chan Sui To and Another [1996] 2 HKCLR 128. The court said that:
“When members of criminal syndicates operate to commit credit card fraud, bearing in mind that the facts of each case are different and that the culpability of syndicate members varies, it is not possible to set down any specific sentencing guideline.
The court suggested that - ‘...an accused who plays an active but not necessarily a key role in a medium sized operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of 5 to 6 years after trial.’
In HKSAR v Chen Wing Hong, CACC40/2005, the court observed that in the world today - ‘...the integrity of the credit card system is highly important and those who attempt to beat the system by fraudulent methods necessarily erode the confidence which people are entitled to place on this aspect of modern commercial life.’”
13. The offence in which the defendant is involved is a syndicated, sophisticated, international operation. It involves not only forged credit cards but forged passports. The defendant is stated to be not the ringleader of this offence and I accept that. However, this defendant played an active and important role in this operation.
14. Taking those features into account, I propose to take a starting point of 5 years for this offence.
15. The only mitigation in this case is the guilty plea entered by the defendant. He will be given credit for that guilty plea and the sentence will be reduced to one of 40 months’ imprisonment.
16. I now have to consider that sentence in the light of the other offences for which he was sentenced in July of 2009. Had the court shared my view of matters for these offences, a sentence of 40 months would have been imposed and that would have exceeded the sentence of 34 months that was passed in respect of the other offences which were before the court. Those offences were committed in December of 2008; these offences were committed in November of 2008. In the circumstances it would seem to be wrong in principle to impose an entirely concurrent sentence for this matter. In my view, the totality of the sentence would have been increased to one of 46 months’ imprisonment.
17. In order to deal with this case in a manner which is fair to the defendant given the fact that he had admitted this offence prior to his appearance on the other charges, what I propose to do is to impose a sentence which reflects the balance of those sentences and that would be a sentence of 12 months’ imprisonment, and that term will start to run from when he would have been released from his earlier sentence. The sentence will run concurrently.
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