HKSAR v. CHAN CHUN PONG

DCCC285/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 285 OF 2009

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Reasons for Sentence 

1.  The dependant pleaded guilty to five charges of using a false instrument (Charges 1, 3, 4, 5 and 6), and a charge of possessing false instruments (Charge 9).

2.  In sentencing, I take into consideration the whole circumstances of the case including its nature and facts, personal background of the defendant, mitigation put forward on his behalf and have had regard to sentencing precedents.

3.  According to the Summary of Facts which the defendant admitted, the defendant used a false MasterCard to make purchase on five occasions on 5 January 2009.  In relation to Charge 1 he purchased some clothing at a value of about $2,600.  In relation to Charge 3 he bought snacks at the value of about $700.  In relation to Charge 4 he bought dried seafood at the value of about $33,500.  In relation to Charge 5 he attempted to buy some cookies, the value of which was low.  In relation to Charge 6 his attempt of buying dried seafood at the value of about $16,000 failed.  The last two attempts failed because the credit card was not accepted.

4.  The defendant was arrested on the following day when he walked past a dried seafood shop where he had succeeded to make a purchase.  Under caution he said he had picked up the MasterCard and had discarded it after use. 

5.  Upon search, two other false credit cards which form the subject matter of Charge 9 were found on him.  He said he had also picked them up and planned to use them to buy dried seafood despite knowing that they were forged. 

6.  In a subsequent interview the defendant said the false MasterCard was in fact given to him by a Mr Lee.  He responded to a recruitment advertisement and met Mr Lee.  Mr Lee gave him the credit card and told him that he would get 10% commission on every $10,000 worth of goods purchased with it.  He knew the credit card was forged but he still agreed to take up the job since he was in need of money.  He admitted to have used the false credit card in the transactions in question and given the goods he had purchased to a Miss Chow who was responsible for receiving the goods.  He had received $1,500 as reward.

7.  On the day he was arrested he was given two more credit cards and he put his signature on them.  They were the credit cards found on his person upon arrest.

8.  The defendant is 59 years of age.  He has separated with his wife.  He has two children aged 15 and 8 respectively.  His wife took the children away when she left him at a time of financial difficulty.  He was employed in a garment factory in the Mainland.  He became unemployed when the factory closed down.  He has been living on CSSA.  He does not enjoy good health.  He has been under constant medication for high blood pressure, diabetes and heart diseases.  He has two minor convictions before.  The first took place in 1980.  He was fined for furnishing false particulars to a registration officer.  The second and the last took place in 1994, almost 15 years ago.  He was fined for gambling.  I will ignore these convictions in consideration of the sentence. 

9.  In mitigation the counsel for the defence told me that the defendant committed the offences because of economic pressure.  He lost his job and was unable to find another one despite hard attempts due to his old age.  Counsel said that the defendant out of despair and lost sight of any hope desperately ventured into criminality with a faint hope of getting some income to supply his lost family.  I am told that the defendant is deeply remorseful.  I have no reason not to accept it. 

10.  I have considered the cases referred to me by learned defence counsel as well as other cases.

11.  The cases to which I have had regard include the following. In R v Chan Sui To [1996] 2 HKCLR 128, the Court of Appeal set out the various factors which a sentencing court should consider in a case of this nature. 

12.  In HKSAR v Chan Kwai Fui CACC94/98, where the applicant pleaded guilty to five charges of obtaining property by deception through using two stolen credit cards stolen on two different occasions, a starting point of 4 years adopted for each charge committed by the applicant who was not a first offender was upheld.  The sentences were ordered to run wholly concurrently making a final total sentence of 2 years 8 months for five charges. 

13.  In HKSAR v Watt Siu Hung CACC93/2001, the applicant had used two forged credit cards in an attempt to buy goods of the value of $3,000.  A starting point of 3 years was held to be on the high side for this relatively minor credit card fraud case but not manifestly excessive. 

14.  In HKSAR v Ng Swee Thiam [2001] HKLRD 772, the Court of Appeal commented that it was the potential for losses which was the most important consideration.

15.  It was held in HKSAR v Tu I Lang CACC464/2007 that, “where the facts of the offence point 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 3 years’ imprisonment or less would be appropriate.”

16.  I have also considered the recent Court of Appeal decision in HKSAR v Wong Chin Hang CACC409/2008.  In that case the Court of Appeal considered a total sentence of 2 years 8 months appropriate where the defendant pleaded guilty to have committed 11 offences of using false credit cards to make purchase of a total amount of about $34,000. 

17.  In the present case the defendant was linked with others who were in a position of obtaining false credit cards.  There is no evidence to show that it was a sophisticated operation and that it was not a small one.  There was no international dimension.

18.  As far as sentencing is concerned I do not consider it amounted to a medium-sized operation.  The defendant did play an active role but he was not at the centre of the syndicate, let alone its mastermind. 

19.  Immediate custodial sentences are called for in this case.  Credit card offences are serious and must be deterred.  I will adopt the following starting points:

Charge 1, 27 months.  Charge 3, 24 months.  Charge 4, 33 months.  Charge 5, 24 months.  Charge 6, 30 months.  Charge 9, 30 months. 

20.  The defendant pleaded guilty.  He is entitled to a one-third discount.  Having considered the whole circumstances including mitigation I am of a view that this is the extent of discount the defendant is entitled to in the present case. 

21.  So I will sentence the defendant to 18 months’ imprisonment for Charge 1; 16 months for Charge 3; 22 months for Charge 4; 16 months for Charge 5; 20 months for Charge 6 and 20 months for Charge 9.

22.  In all the circumstances of the case, wholly concurrent sentences are not appropriate.  Taking into account totality I order the sentences of Charge 1, 3, 4, 5 and 6 to run concurrently and 5 months of Charge 9 to run consecutively to the aggregate sentence imposed on all the other charges, making a total sentence of 27 months.