HKSAR v. LI KUNWEI

DCCC 831/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 831 OF 2015

-----------------

--------------------------------------

REASONS FOR SENTENCE

--------------------------------------

INTRODUCTION

1. On 29 January 2016, the defendant appeared before this court and pleaded guilty to the first and second charges in a Charge Sheet containing a total of three charges.  The charges to which he pleaded guilty were attempt to use a false instrument, contrary to sections 73 and 159G of the Crimes Ordinance, Cap 200 (Charge 1), and using a false instrument, contrary to section 73 of the same Ordinance (Charge 2). Upon the defendant’s conviction of the two charges, the prosecution applied to have the remaining charge on the Charge Sheet, a charge of possessing false instruments, to be left on court file.  The defence had no objection to the application, which was granted accordingly.

FACTS

2. Shortly before 12-noon on 2 July 2015, the defendant entered Hong Kong on the strength of a visitors’ permit.  The following afternoon, he presented to a staff member of In-smart at shop no.55, Ground Floor, Golden Computer Arcade, Nos.146-152 Fuk Wa Street, Shamshuipo, a forged Industrial and Commercial Bank of China MasterCard in the name of Chen Wenbo and successfully purchased a $6,388-worth iPhone 6. (Charge 2) Next, he showed up at Studio A, Shop G01-02, Ground Floor, Novotel Hotel, No.348 Nathan Road, Yaumati, and attempted to settle payment for another iPhone with the use of the same forged card.  The staff member at Studio A who dealt with the defendant doubted the veracity of the card, refused to process the transaction, and reported the matter to the police. (Charge 1)

3. Two police officers attended the scene and intercepted the defendant outside Studio A.  They found the forged card in the defendant’s right, front trousers’ pocket and questioned him.  The defendant admitted that the card was a false card and that he had purchased it on the mainland for the purpose of making money in Hong Kong.  In addition, five other forged MasterCards were found in the defendant’s possession, none of which were in the defendant’s name.  The iPhone the defendant purchased at In-smart was recovered.  In a subsequent video interview, the defendant said he made around RMB4,000 a month but he owed a debt of some RMB80,000.

MITIGATION

4. The defendant, a mainland resident, was born in December 1984 and is now 31 years old.  He has received education up to high school standard and has had no criminal records in Hong Kong prior to his convictions in this case.  He is married and has two young children.

5. In his plea in mitigation, Mr Edwin Choy appearing for the defendant provides for the court’s consideration further background information as follows.  The defendant was brought up in a rural area of the Guangdong Province.  After his graduation from high school, he started to work as a salesman.  He got married in 2010 and moved to live in Shenzhen the following year.  He was the sole breadwinner of the family. Subsequent to his arrest in Hong Kong in July last year, his wife has returned to her maiden home, leaving the two children in the care of the defendant’s parents at their ancestral village.  Mr Choy submits in mitigation that the defendant has rendered his full co-operation to the police before and after his arrest and has pleaded guilty to the offences to show remorse.  Referring to the case of R v Chan Sui To[1][1996] 2 HKCLR 128, Mr Choy submits that the defendant’s case falls within the category of a small-scale operation; he asks the court to pass a sentence “less than that recommended … for medium size operations” in that case.

REASONS FOR SENTENCE

6. In the recent case of HKSAR v Lam See Chung, Stephen[2], the Court of Appeal reviewed a number of previous authorities, including R v Chan Sui To[3], HKSAR v Ng Swee Thiam and ors[4], HKSAR v Cheung Ka Wo Johnny [5] and HKSAR v Tu I Lang[6],  and said:

‘39. Those judgments which lay down a sentence of 3 years’ imprisonment or less for cases of simple credit card fraud are based on a number of sentencing principles and considerations. They are that counterfeit credit card offences require deterrent sentences; there is a need to protect the integrity of the credit card system; and the potential for loss is great and often will be far greater than the actual loss. In fact, it is precisely because of this last consideration that the actual loss will not necessarily be an important factor when it comes to sentencing a credit card offender; rather “it is this potential for losses which is the most important consideration.” ’

7. In HKSAR Loh Joo Hoohi[7], the defendant was a Malaysian national who came to Hong Kong via Shenzhen.  He used two forged credit cards to purchase goods and was found upon his arrest to be in possession of three other forged credit cards.  The Court of Appeal approved a starting point of three and a half years’ imprisonment for each of the three charges he faced.  In respect of the international dimension in cases of credit card fraud, the Court of Appeal said:

“18. … the aggravation lies in the intentional bringing of the instruments of crime over the border from another jurisdiction for their use or proliferation on the streets of Hong Kong.”

8. In the present case, the two charges to which the defendant has pleaded guilty involve the same MasterCard, and the stolen item in the second charge is an iPhone.  The defendant has purchased the forged card in Shenzhen specifically with a view to committing an offence in Hong Kong.  His case falls therefore within the category of simple cases of credit card fraud committed with an international element. 

9. Mr Choy agrees, realistically, that the starting point in his client’s case should be between three and five years.  In this regard, the court notes that in Chan Sui-to’s case[8], the Court of Appeal held:

“ 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 not 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.”

10. The defendant in the present case must be sentenced on the basis of his convictions of the two charges, involving the use, actual and attempted, of one forged MasterCard.  Despite his previous good character and the value of the stolen goods concerned not being considerable, there is no reason to adopt a starting point below that of three years and three months’ imprisonment for each of the two charges. 

11. The defendant is, as is customary, entitled to one-third reduction in sentence for his guilty pleas and previous good character; the sentences are reduced therefore to two years and two months. 

12. Having regard to the totality principle, it is ordered that the sentences for the two charges be served concurrently.

CONCLUSION

13. For the two offences of which he stands convicted, the defendant is sentenced to two years and two months’ imprisonment.