HKSAR v. CHEUNG CHIU YEE

 DCCC787/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 787 OF 2009

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Reasons for Sentence

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1.  The defendant has pleaded guilty to once offence of using a false instrument and another offence of possessing a false instrument.  He has agreed the facts presented by the prosecution and I have convicted him of those offences.

2.  The facts show that the offences were committed on 8 June this year when the defendant entered a Fortress shop in Metroplaza in Kwai Chung and he attempted to purchase a digital camera valued at almost $9,000.  Now in order to do that he presented a Bank One Visa card in his name and the staff of the shop suspected this was a counterfeit and did not proceed with the transaction.  The defendant took the card back but was stopped by police.

3.  On arrest, the defendant surrendered the card that he had attempted to use and also another card was also surrendered.

4.  The defendant did make some admissions to the police and that was on 7 June a friend had asked him if he wanted to make money and the two counterfeit credit cards had been given to the defendant.  He was asked to buy goods with it and was promised a 10 per cent commission for each successful purchase.  The defendant said that this was the first time he tried to use the first card to make a purchase.

5.  The cards were sent to the Government Laboratory and confirmed to be counterfeits.  The defendant’s antecedents have been placed before the court.  He has been educated to Form 3 level in Hong Kong.  He was unemployed at the time and had been a waiter before that.  It was said that the defendant is in fact a drug addict under methadone treatment.  His last release from prison had been in 2009.  The defendant’s criminal record shows that he has a total of 15 previous convictions.  A number of these are involving drugs, so clearly he is a drug addict as he said.  The defendant also has some convictions for theft and also robbery and has served terms of imprisonment of up to 4 years for that offence.

6.  As far as the defendant's mitigation is concerned, he has pleaded guilty, he has admitted the facts, he has shown remorse.  His personal circumstances show that he has a wife and a daughter in China.  The daughter is cared for by her grandparents.  The defendant had been a scaffolding worker but had a serious injury at work and that made him unable to continue with that profession.  His daughter is currently three years old and the defendant ran into financial problems, and as he said in his cautioned statement, undertook this fraud in order to try and earn some money.

7.  Now, in offences of this nature in determining the starting point for sentence, the courts are enjoined to look at a number of factors.  Firstly, the size of the operation, any  planning that had gone into perpetrating the fraud, whether elaborate or technical skills are used, whether there is an international dimension and whether the accused played a major role or not and naturally whether there is a plea of guilty.  The courts have said that the starting point for sentence where there is the use of a credit card can be in the region of 3 years' imprisonment.

8.  Now this is a small operation, the defendant only had two credit cards and the amount of goods attempted to be purchased was just under $9,000.  Some planning had gone into perpetrating the fraud in that the cards were produced in the defendant’s name and there is no international dimension.  The defendant played the role of the person who goes out and tries to buy the goods with it.  The defendant pleaded guilty.

9.  Having regard to these offences, I consider the appropriate starting point to take in respect of each offence is 3 years’ imprisonment.  I will reduce that to 2 years' imprisonment for the defendant's plea of guilty.

10.  Now obviously the offences, although committed on the same day, the possession of the other card clearly indicates the defendant had in mind at least to use that as well and I consider that at least some part of the 2nd charge should be served consecutively to that on the 1st but I did bear in mind, as I say, the small nature of this operation.  What I shall order is that 6 months of the 2nd charge shall run consecutively to that of the 1st, the balance of 18 months shall run concurrently.  This will leave a total sentence of 2½ years' imprisonment.