HKSAR v. CHAN SHI CHIUAN

DCCC1092/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1092 OF 2011

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Reasons for Sentence

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The Charges and the Facts

1.  The Defendant pleaded guilty before me to two charges of “using a false instrument” (the 1^st and the 2^nd charges), and one charge of “possessing false instruments” (the 3^rd charge), contrary to sections 73 and 75(1) of the Crimes Ordinance, Cap. 200, respectively.

2.  Each of the 1^st two charges involved one forged credit card while the 3^rd charge involved a total of six other forged credit cards.

3.  The Summary of Facts disclosed that in the afternoon of 18 August 2011, the Defendant went to Burberry, Duty Free Shop, in Tsim Sha Tsui and used a forged Citibank card to make payment for a handbag valued at HK$5,900. As the saleslady found the card suspicious, the security guards were alerted. This is the subject matter of the 1^st charge.

4.  In the meantime, the Defendant gave another forged OCBC Bank card for making payment. The saleslady, however, did not use the card to process the transaction as she was waiting for the arrival of the guards. This is the subject matter of the 2^nd charge.

5.  A few minutes later, two security guards arrived and took the Defendant to the security office, pending the arrival of the police. After the Defendant had been arrested and when he was under caution, he told the police that the cards were given to him by an unknown person in Shenzhen. He further said that if he was successful in making the purchases, he would bring the goods to Shenzhen and he would then get his reward.

6.  Upon a search on the Defendant, six other forged credit cards were found inside his wallet. Under caution, the Defendant repeated what he said earlier to the police. This is the subject matter of the 3^rd charge.

7.  With two exceptions, the cards all bore the name “S. C. CHAN”.

Mitigation

8.  The Defendant is a Malaysian Chinese who has a clear record in Hong Kong. He is now aged 36 and has been educated up to Form 5 level. He is divorced. His 10-year-old son now lives with his ex-wife. Prior to his arrest, the Defendant lived with his mother and younger brother. He was then working as a technician, and he contributed part of his income for the maintenance of his son and his parents.

9.  A few years ago, the Defendant set up his own business in Malaysia. It failed and the Defendant then owed a huge debt. Afterwards, he raised loans with loan-sharks which resulted in greater debts. As he was in financial difficulties, he accepted his friend’s suggestion and came to Hong Kong to commit these offences.

10.  The Defendant admitted that six of the forged cards bore his initials and his surname as such particulars had been provided by his friend to those making the forged cards. In mitigation, it was said that although the Defendant had been promised 10% of the value of the goods as his reward, since he was arrested before any successful purchases could be made, he had received no reward at all.

11.  Ms. Lau for the Defendant urged, on his behalf, that a lenient sentence be passed. Ms. Lau submitted that the Defendant is genuinely remorseful and he did not play a major role in the operation. Further, Ms. Lau emphasized that the Defendant pleaded guilty at an early stage and has saved the court’s time. In the Defendant’s letter which was provided to the court, the Defendant related the same remorse.

Sentencing Considerations

12.  In R v Chan Sui-to & Another [1996] 2 HKCLR 128, a number of factors have been identified as being relevant in sentencing this type of offences. These include the size of the operation, the planning involved, whether there was an international dimension, and the role played by the Defendant. It is also to be noted that the sum of money involved, while being one of the relevant factors, is not regarded as the most significant one.

13.  In the present case, the Defendant had armed himself with eight forged credit cards in total and had deliberately come to Hong Kong to commit these offences. Six of the forged cards bore his name. The Defendant admitted that his particulars had been passed to those making the forged cards so that such could be imprinted on the cards. He further admitted that he had gone to Shenzhen to stay for a few days while waiting for the cards to be prepared and given to him. 

14.  From the facts admitted, it is clear that there must have been a syndicate working behind the Defendant. The Defendant was fully aware of this and he agreed to act as the syndicate’s “foot soldier” to conduct the purchases and to defraud the shops in Hong Kong.

15.  At the time of the offence, the Defendant was trying to get a handbag worth HK$5,900. This shows that he was targeting expensive goods. If the Defendant had not been arrested by the police, I am sure that he would continue to purchase expensive goods by using the forged cards he had with him. With the number of cards he had in hand, the potential losses that he could have caused to shops would not be small. In HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517, the Court of Appeal said that it was the potential for losses, rather than the actual loss, in relation to the fraudulent use of credit cards that was important in sentencing for this kind of offences.

16.  Moreover, the fact that the Defendant deliberately came to Hong Kong to commit these offences is also an aggravating factor. People who come to Hong Kong to engage themselves in criminal enterprises must be deterred. A strong message must be sent out that Hong Kong is not a place for these criminals.

17.  When considering the sentence in this case, I bear in mind the facts admitted and all the above. I also note the court has repeatedly said that in order to protect the integrity of our highly important credit card system, severe sentences are called for as a deterrent.

Sentencing the Defendant

18.  I accept that the present case was a small-scale operation. Yet, without people like the Defendant who agreed to conduct the purchases, it would be difficult for these credit card frauds to take place. For the reasons mentioned above, including that the Defendant is a foreigner deliberately coming to Hong Kong to commit these offences, I consider that a starting point of 3 years is appropriate for the 1^st and the 2^nd charges while a starting point of 45 months is appropriate for the 3^rd charge.

19.  A one-third reduction will be given to the Defendant for his plea. Other than that, and having taken into account the Defendant’s background and all that was said on his behalf in mitigation, I do not see any other powerful mitigating factors which would warrant any further reduction in sentence. The Defendant’s financial problem was no excuse for his committing the offences and it could not be of assistance to him in mitigation.  

20.  Having considered the totality principle, I take the view that an overall term of 34 months should sufficiently reflect the Defendant’s culpability in these three charges. I therefore order that the 2-year term in respect of the 1^st and the 2^nd charges are to run wholly concurrently while 10 months of the 30-month term in respect of the 3^rd charge are to run wholly consecutively to the terms for the 1^st and 2^nd charges, making a total term of 34 months’ imprisonment.