HKSAR v. WONG CHIN FAI AND OTHERS

DCCC 1268/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1268 OF 2008

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REASONS FOR SENTENCE

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1.  D1 is convicted after trial of one charge of handling stolen goods, contrary to section 24 of the Theft Ordinance, Chapter 210.  D2 pleads guilty to three charges of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, (charges 2, 4 and 6) and one charge of possession of false instruments, namely six forged credit cards, contrary to section 75(2) of the Crimes Ordinance, Chapter 200   (charge 10).  D3 pleads guilty to one charge of attempting to obtain and three charges of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, (charges 1, 3, 5 and 7) and one charge of possession of false instruments, namely five forged credit cards, contrary to section 75(2) of the Crimes Ordinance, Chapter 200 (charge 11).

2.  Full particulars of the offences are set out in the facts admitted by D2 and D3 and in the verdict delivered earlier today in relation to D1 on the handling charge.  In summary D1 drove D2 and D3 and a person called Ah Man to the airport on the 31st October 2008.  During the journey D2 and D3 were each given three forged credit cards and were instructed by D1 what to buy and from which shop. 

3.  Specifically before lunch D1 instructed D2 to go to Fortress (charge 2).  D3 went to Skyphoto (charge 3).  After purchasing goods at those shops with forged credit cards D2 and D3 handed over the goods to D1 at lunch.  The police later found the goods subject of these two charges in D1’s car. 

4.  After lunch D2 and D3 each bought goods in two other shops using forged credit cards (charges 4-7).  On arrest D2 was found in possession of six forged credit cards, including the one she had used at the airport that day (charge 10).  D3 was found in possession of five forged credit cards, including the three cards she had used at the airport that day (charge 11).  All the credit cards were in the names of D2 and D3.

5.  On the 10th October 2008 D3 attempted to use a forged credit card in her name to purchase 20 entry tickets to Ocean Park, valued at HK$9,700.  After the staff of Ocean Park had noted down the Hong Kong identity card number of D3 and sought verification of the credit card, D3 left, leaving behind the forged credit card.

6.  I have carefully considered everything said by Mr Lee on behalf of D1, by Miss Catherine Wong for D2 and Miss Barbara Wong for D3 together with the letters submitted on behalf of the defendants.  I take into account that D1 is the sole breadwinner and that he has two young children to look after, one only two-months old.  I take into account the family circumstances of D2 and D3 and that they both became involved out of financial hardship.  I take into account the death of D3’s father whilst she has been in custody and that her mother was diagnosed with cancer in May 2008.

7.  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.

8.  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.  The activities of the defendants would no doubt have continued but for the intervention of the police.  This can also be clearly seen by the fact both D2 and D3 were found in possession of more forged credit cards when arrested.  I note at the trial of D1, D2 and D3 testified that they were each given three forged credit cards on the way to the airport.  D2 said she did not know why six forged credit cards were in her wallet on arrest.  D3 said that of the five credit cards found on arrest she had kept two cards, which had been given to her on the day she went to Ocean Park, as souvenirs because they had been tried out that day but found not to work.  Whilst accepting the evidence of D2 and D3 as to the role of D1 I did not accept the evidence of D2 she did not know six cards were in her wallet and that D3 kept two cards as souvenirs.   

9. Miss Catherine Wong refers the court to the decision of the Court of Appeal in HKSAR v TU I Lang CACC 464/2006 where the court said at paragraph 10, “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 three years’ imprisonment or less would be appropriate.” 

10. Miss Barbara Wong for D3 also relies on this decision along with nine other decisions, mostly of the Court of Appeal.  In particular  Miss Wong refers to the most recent decision of the Court of Appeal in HKSAR v WONG Chin-hang CACC 409/2008 and submits the appropriate starting point is one of two years imprisonment.  I do not propose to go through these cases, save to say I am very familiar with the decisions and have taken them into account.  What is clear is that the Court of Appeal has repeatedly stated each case is to be decided on its own facts and circumstances. 

11. I note in HKSAR v WONG Chin-hang the court again at paragraph 10 commented that the starting point of two years imprisonment appeared to be lenient.  The Court of Appeal has upheld starting points higher than three years imprisonment for similar offending (see for example    HKSAR v AU Yeung Shu-sang CACC 474/2006; HKSAR v HAU Ka-kit CACC 390/2005; HKSAR v CHAN Wai-kin CACC 237/2005and HKSAR v GUI Zhiqiang CACC 289/2005).

12. Specifically in HKSAR v AU Yeung Shu-sang the appellant pleaded guilty to four charges: two of obtaining property by deception and two of using a false instrument to induce its acceptance as a genuine instrument.  The case concerned three transactions using two different forged credit cards.  The Court of Appeal in holding that the proper starting point on each charge was three years and six months imprisonment found that the applicant was not acting alone and was obviously part of a wider organisation that had caused cards to be printed specifically for him to be aggravating features.

13. Turning to D1 he stands to be sentenced on one count of handling stolen goods only.  Whilst the evidence suggested a wider involvement by D1 in both the activities at the airport and earlier at Ocean Park he is to be sentenced only for the charge he is convicted of.  The prosecution could have laid additional charges but have chosen not to do so.

14. A similar situation arose in HKSAR v CHUNG Chi-tak  CACC 183/2004.  In that case the defendant was convicted after trial of a single charge of handling stolen goods and a charge of possessing a false instrument found at his home.  The handling charge related to goods obtained by a co-accused by using a forged credit card. 

15.  The Court of Appeal commented at paragraph 25: “Of course, it was open to the prosecution to have laid a charge or charges of conspiracy to use false instruments, a conspiracy to defraud or multiple substantive charges to reflect his alleged role.  The purpose of a charge in the District Court or a count on the indictment is to confront the defendant with the specific criminality of which he is accused.  Then, the defendant knows the allegations that he has to meet.  That is not to say that in sentencing the court is not entitled to have regard to the circumstances of the commission of the offence.  Of course, in sentencing a handler of stolen goods a court is entitled to have regard to the original theft and to the accused’s degree of connection with it”.

16. No charges having been laid that D1 had handled any of the other goods stolen that day, nor that he had conspired with D2, D3 and Ah Man, incited or counselled or procured them to possess forged credit cards,    I take into account only the circumstances of the offence D1 is convicted and his connection with the obtaining of the stolen goods by the use of forged credit cards. 

Starting points

17. On the facts I accept the defendants were involved in what can be described as a small-scale operation.  However they were not acting alone and were obviously part of a wider organisation that caused cards to be printed specifically for D2 and D3.

18. In determining the starting points I take into account D2 has a clear record.  D1 on the other hand has a previous conviction for possession of obscene articles for which he was sentenced to 12 months imprisonment in 2005.  D3 at the time of the offences was of a clear record but was subsequently convicted in November 2008 of attempted theft committed prior to the present offences, for which she received a sentence of    7 months imprisonment. The criminal records of D2 and D3 are not aggravating features justifying an increase in the starting points. 

D1

19. Taking into account the circumstances of the offence and having regard also that the stolen goods were obtained by using forged credit cards I am satisfied D1 was a party to a forged credit card fraud. He drove D2, D3 and Ah Man to the airport and directed D2 and D3 what goods to buy and from which shops.  I note in HKSAR v CHUNG Chi-tak the Court of Appeal said for the single charge of handling the appropriate starting point was three years imprisonment.  There the charge related to only one charge of obtaining property by deception.  Here the charge relates to two charges of obtaining property by deception and two different forged credit cards.  Nevertheless I am satisfied in the circumstances of this case a starting point of three years imprisonment is appropriate.  There are no grounds to reduce that sentence.  D1 is sentenced to 3 years imprisonment. 

D2

20.  D2 used a forged credit cards three times on the same day and possessed a further five forged credit cards.  I am satisfied the proper starting point after trial on each of the obtaining charges is 3 years and 6 monthsimprisonment and 3 years imprisonment for possession of six forged credit cards.  In so deciding I am aware that is the maximum sentence for possession.  The defendant is perhaps fortunate she was not charged under section 75(1) which carries a maximum of 14 years imprisonment.

D3

21.  D3 attempted to use a forged credit card on the 10th October 2008 and used three different forged credit cards on the 31st October 2008 on which day the defendant also possessed two more forged credit cards.   I am satisfied the proper starting point after trial on the attempt charge is 2 years and 6 monthsimprisonment(seeHKSAR v HO Ka-yee    CACC 245/2005).  On each of the obtaining charges 3 years and  6 months imprisonment and 3 years imprisonment for possession of five forged credit cards.  She too is fortunate she was not charged under section 75(1).

22. D3 committed these offences whilst on bail for the offence she received 7 months imprisonment in November.  Commission of offences on bail is an aggravating feature justifying an increase in the starting points.  Accordingly I increase the starting points on the three obtaining charges to 3 years and 9 months imprisonment.

Assistance to the authorities

23. D2 and D3 have both testified on behalf of the prosecution at the trial of D1.  I am satisfied that as a result they are entitled to a further discount in sentence.  I am satisfied in the case of both D2 and D3 the discount is to be one of 45%.

24. D2 is sentenced as follows:

Charge 2 – 1 year and 11 months imprisonment;

Charge 4 – 1 year and 11 months imprisonment;

Charge 6 – 1 year and 11 months imprisonment;

Charge 10 – 1 year and 8 months imprisonment;

All offences arising out of the same incident I order the sentences to be served concurrently.  D2 is sentenced to 1 year and 11 months imprisonment, which I am satisfied properly reflects her criminality on the four charges.

25. D3 is sentenced as follows:

Charge 1 – 1 year and 4 months imprisonment

Charge 3 – 2 years imprisonment;

Charge 5 – 2 years imprisonment;

Charge 7 – 2 years imprisonment;

Charge 11 – 1 year and 8 months imprisonment;

Charges 3, 5, 7 and 11 all arising out of the same incident I order the sentences to be served concurrently.  Charge 1 however was committed on a different day and is clearly separate and distinct.  A consecutive sentence is therefore appropriate.  Taking into account totality of sentence I order 6 months consecutive and 10 months concurrent to charges 3, 5, 7 and 11.  D3 is sentenced to a total of 2 years and 6 months imprisonment, which I am satisfied properly reflects her criminality on the five charges.