HKSAR v. TANG SIU CHEONG

DCCC987/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.987 OF 2009

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REASONS FOR SENTENCE

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1.  The defendant faces 2 charges. Charge 1 is for the using of a false instrument, contrary to s.73 of the Crimes Ordinance, Cap. 200. Charge 2 is for the possession of a false instrument, contrary to s.75(1) of the same ordinance. In relation to charge 1, it is alleged that the defendant on 8^th August 2009 at one Louis Vuitton shop situated at ground floor of Ocean Centre in Tsim Sha Tsui used a Bloomingdale Visa Card in the name of Tang Xiu Cheung with the intention to induce another to accept it as genuine. In relation to charge 2, it is alleged that the defendant on the same day had in his possession or under his control one CIBC Visa Card in the name of Tang Xiu Cheung with the intention that he or another would use it to induce somebody to accept it as genuine.

2.  The defendant pleaded guilty, admitted to the summary of facts and was duly convicted on both charges.

Summary of Facts

3.  At around 3:30pm on 8^th August 2009, the defendant and another unknown male approached a salesperson (“pw1”) of Louis Vuitton shop in charge 1, pretending to want to purchase 2 handbags valued at HK$14,000 in total. The defendant presented a Bloomingdale Visa Card in the name of “Tang Xiu Cheung” (“Card One”) for payment. Pw1 suspected that it was a forged card and reported the matter to the sales manager (“pw2”). [Charge 1]

4.  Pw2 called the card centre and confirmed that the information imprinted on Card One was different from the record of the card centre. A report was made to the police. At this juncture, the above mentioned unknown male left the shop. When the defendant tried also to leave, the security guard (“pw3”) of the shop intercepted him and stopped him from leaving.

5.  PC34896 (“pw4”) and other police officers arrived at the shop to investigate. Pw1 confirmed with the police that the defendant was the person who presented Card One for payment. Pw4 then conducted a search on the defendant and found the CIBC Visa Card (“Card Two”) named in charge 2 inside the left back pocket of the defendant’s trousers. When pw4 was inspecting Card Two, the defendant suddenly told him that Card Two was also forged. [Charge 2]

6.  Pw4 arrested the defendant. Under caution, the defendant said that it was his first time using a forged credit card and asked for a chance. The admission was later post-recorded in a record of interview.

7. Cards One and Two were later sent for examination by the Government Chemist who is of the opinion that both were forged cards. The CCTV inside the shop captured the whole incident.

Previous Convictions

8.  The defendant has 16 previous convictions, none related to credit card offences. 7 of those offences were however offences related to dishonesty. His last conviction was in December 2008 for an offence of possession of dangerous drugs when he was sentenced to 6 months’ imprisonment suspended for 18 months. He therefore committed the present offences during the period of suspension.

Mitigation

9.  The defendant is 32 years old. Through 2 previous relationships he has fathered 2 sons, aged 5 and 3. He has lost contact with the elder son and his mother while the younger son is living with his mother in China. The defendant contributes about $1,000 per month towards their living expenses.

10.  The defendant was educated up to F.3 in Shatin Public School, a school for mild grade mentally handicapped children.

11.  The defendant worked as air-conditioning apprentice, garage apprentice, paper boy, restaurant delivery worker, kitchen assistant, etc. Since his last release from prison in 2005 he had taken up various jobs, the last one being an air-conditioner technician. Unfortunately, the defendant suffered an accident at work in 2007 and was assessed to suffer a permanent 2% loss of earning capacity. The claim agent did not pursue his claim properly and the defendant only received compensation of $4,000 so far. Since the defendant’s injury, he was not able to hold a full time job and has to rely on public assistance. The defendant however still tried to do odd jobs although the pay is always minimal. The defendant has been in some financial hardship since 2007 and had to rely on his separated parents, who are also on public assistance, to help to support his son in China. The defendant’s mother suffers from depression.

12.  Counsel for the defendant submits that the defendant was induced by the unknown person mentioned in the summary of facts into committing the present offences. The defendant met that person at a video game arcade who one day asked the defendant for his name. It was that same man who later gave the 2 forged credit cards to the defendant and asked the defendant to join him in using them.  It was that man who told the defendant where to go and what to buy, he was the mastermind of the offences. The defendant was promised a reward of $1,000 if he agreed to help. The man was known to the defendant simply as “Farn Shu”. The defendant was in need of money and being gullible, he fell into the trap of this man and committed the present offences. The defendant is remorseful of the things that he had done.

13.  Although the defendant has 16 previous convictions, it was pointed out in mitigation that the sentences he received were relatively low sentences. The longest sentence he received was 8 months’ imprisonment in 2004 when he was sentenced for theft. Obviously those could not have been serious crimes.

14.  It is submitted that the role the defendant played in the present case was a minor one. The case involves a small scale credit card fraud and the defendant  was merely being exploited for being naïve and gullible by those people operating behind him.

Sentencing cases

15.  The maximum sentence for both charge 1 and 2 is 14 years’ imprisonment.

16.  In the case of HKSAR v Yau Hoi Shan Shanly, CACC209/2006, the Court of Appeal expressed its view on the need to deal with credit card fraud cases severely and examined a series of small scale credit card fraud cases:

“This Court has repeatedly emphasized that credit card offences are widespread and prevalent, and must be dealt with severely. Litton JA (as he then was) observed in R v Kwan Ying Ho (unrep Crim App No 527 of 1992) that, “Credit card frauds have in recent years been an insidious poison in the community. It affects a large number of citizens. It erodes the credit card system and damages Hong Kong’s standing in the international community”.

28.  In R v Chan Sui To & Another [1996] 2 HKCLR 128, Yang CJ, after referring to a number of cases involving forged credit cards, said at p 134:

“Allowing for the different facts and the varying degrees of culpability, it is impossible to formulate a set of principles of sentencing from those decisions. We think however it would be helpful to the courts if they were guided by some criterion. We would therefore suggest that an accused who plays an active but no necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of five to six years after trial. Sentences may be adjusted upwards or downwards according to circumstances.”

29.  We have examined many cases of small-scale credit card fraud. It appears that the starting points for credit card offences adopted in those cases often exceeded the starting points adopted by the judge.

30.  The 2nd defendant in Chan Sui To (supra) used one forged credit card to purchase various items to the total value of about $16,000. She was also found to be in possession of another forged credit card. The judge found her to be a mere courier and she had a clear record. Her total sentence for the forged credit card offences, on a plea of guilty, was 2 years’ imprisonment.

31.  In HKSAR v Yim Wai Ling CACC 35/2004, the defendant tried unsuccessfully to use two forged credit cards to purchase a computer and a digital camera.  Whilst on bail for those offences, the defendant was found to be in possession of another forged credit card and an identity card belonging to someone else, and on a plea of guilty, an overall sentence of 30 months was considered appropriate.

32.  In HKSAR v Poon Chu CACC 55/2000, the defendant used three forged credit cards to pay for goods and services to the value of $10,000 to $11,000. He was also found to be in possession of a fourth forged credit card and an identity card belonging to another. On a plea of guilty, the defendant was sentenced to 32 months’ imprisonment.

33.  The applicant tried successively to use two forged credit cards purportedly issued by foreign banks to purchase a mobile phone. She then used a third forged credit card to make five purchases from different shops. She still kept the third forged credit card, no doubt with the intention of making further use of it in appropriate circumstances.”

17.  In the case of HKSAR v Tu I Lang, CACC464/2006, the Court of Appeal observed that “where the facts of the offence pointed to a small unsophisticated operation, involving only 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.”

18.   Counsel for the defendant seeks to rely on the case of HKSAR v Poon Yiu Fai, HCMA 223/2009 to support a starting point of 21 months’ imprisonment, on the basis that the facts in that case, the personal background as well as the previous conviction records of the appellant are not so different from our present case. I note however that, at paragraph 17 of the judgment, the learned Deputy High Court Judge stated that she would have gone up to 24 months with the starting point but for the fact that the appellant was unrepresented. This is however still at least 12 months less than what the cases reviewed by the Court of Appeal in the above mentioned case of Yau Hoi Shan Shanly.

Sentence

19.  The defendant in our present case tried to pay for goods worth $14,000 with a forged credit card purportedly issued by a foreign bank or institution. The other credit card found in his possession in relation to charge 2 was also purportedly issued by CIBC, a foreign bank. The defendant did not appear to be working alone.

20.  It is noted that the defendant appears to be a mild grade mentally handicapped person and he might very well have been exploited by those who had the expertise to manufacture the forged credit cards. It would appear what those behind the scene would do is to look for a gullible person, like the defendant in our case, and then lure him or her into doing the most dangerous part of their illegal enterprise, that is the actual using of the credit cards in the shops, for a small reward. Should the transaction fell through, only the gullible person would be apprehended and then it can invariably be put forward in mitigation that they are the least culpable person in the whole operation and that they have merely been exploited, thus deserving a lenient sentence. That is perhaps why even in small scale credit card fraud cases in the District Court, a starting point of 3 years’ imprisonment is the norm, no doubt to deter those most susceptible to think twice before agreeing to take the risk of using a forged credit card. Credit card frauds are still prevalent and remain to be dealt with severely.

21.  Taking into consideration the relatively small scale of the operation, the relatively small amount involved, but not losing sight of the fact that the defendant has 7 previous convictions related to dishonesty and the potential for further losses had the defendant not been apprehended, and bearing in mind the personal circumstances of the defendant including the fact that he maybe mildly mentally handicapped, I find that a starting point of 30 months’ imprisonment is appropriate for each of the 2 charges. Although the defendant did not plead guilty at the earliest opportunity, I will still grant him the full 1/3 discount and sentence him to 20 months’ imprisonment on each of the 2 charges. Given the circumstances that the 2 offences were committed, I will order that the sentences be served concurrently.

The suspended sentence

22.  The defendant committed the 2 offences while under a suspended sentence that was imposed on him on 17^th December 2008 for an offence of possession of dangerous drugs. The sentence is 6 months’ imprisonment suspended for 18 months. I order that the suspended sentence be activated in its entirety.

23.  Bearing in mind the principle of totality, I order that 4 months of the activated suspended sentence to be served consecutively to the sentences in charge 1 and 2 in the present case, taking the overall sentence to that of 24 months’ imprisonment for the 2 cases combined.