HKSAR v. KAN YUN FAI

DCCC 976/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 976 OF 2014

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REASONS FOR SENTENCE

1.  The defendant faces 3 charges of "Using a false instrument" (Charges 1 to 3); 1 charge of "Possessing false instruments" (Charge 4); 1 charge of "Handling stolen goods" (Charge 5); and 1 charge of "Possession of a dangerous drug" (Charge 6).

2.  He pleaded guilty to Charges 1 to 4 and 6.  Upon application by the prosecution, I ordered Charge 5 be left in the court file; not to be proceeded against him without leave of court.

3.  The false instruments involved are forged credit cards.

Summary of Facts

4.  In July 2014, Miss TSE (PW1) was employed by Kenchart Investments Limited as a shop assistant working at an apparel shop situated at a shopping mall in Mongkok ("the Shop").

Charge 1

5.  About 10:25 pm on 22 July 2014, the defendant entered the Shop and was served by PW1.  He selected a few items, placed them near the cashier counter and left. About 10:45 pm, the defendant returned to the Shop.  He settled the bill (in the sum of $2,247.30) using a black American Express credit card ("Card 1").  The transaction was successful.  The cardholder's name shown on the receipt was "I-Mei L". 

Charge 2

6.  About 8:50 pm on 23 July 2014, the defendant went to the Shop and was served by PW1.  He repeated the same modus operandi.  About 9:10 pm, he returned to the Shop and settled the bill (in the sum of $6,223.50) using Card 1.  The transaction was successful.

Charge 3

7.  About 9:35 pm on 27 July 2014, the defendant went to the Shop and was served by PW1.  He repeated the same modus operandi.  About 10:05 pm, he returned to the Shop and tried to settle the bill (in the sum of $13,336.40) using a blue American Express credit card ("Card 2").  The transaction was unsuccessful. The defendant presented another blue American Express credit card, but the transaction was unsuccessful.  He then presented a black American Express credit card, the transaction was still unsuccessful.

8.  At the defendant's request, PW1 tried to put Card 2 through again.  The system requested the user to pick up the card-reading machine and enter a password.  The defendant did so, and the transaction was successful.  PW1 felt suspicious and reported the matter to her manager.  The cardholder's name shown on the receipt was "KAMAN".

Charges 4 and 6

9.  About 7:45 pm on 28 July 2014, the defendant went to the Shop and was served by PW1. Meanwhile, another staff member of the Shop alerted the Police.  They soon arrived and arrested the defendant.

10.  The defendant was searched at the Shop.  A total of 5 American Express credit cards (as particularized in Charge 4) were found on him; none of them bears his name. Subsequently, an expert from American Express (PW9 Mr. CHAN) examined those 5 credit cards and confirmed that they are all counterfeit cards.  PW9 has also identified 4 fraudulent transactions (other than those in Charges 1 to 3) associated with 2 of the 5 forged credit cards; and the total sum involved is $4,597.  PW9 stated that the potential loss for each of the 5 forged credit cards could be US$7,000.

11.  On the day of his arrest, the defendant was further searched at the police station.  A tissue paper containing 3 paper packets (which contained a total of 0.46 gramme of a powder containing 0.34 gramme of ketamine) was found on him.  Under caution, he claimed that the "K Chai" was for self-consumption.

Mitigation & Sentence

12. The defendant is 31 and single. He has 11 conviction records which include 1 "Using a false instrument" offence, 1 "Possessing a false instrument" offence, 4 "Obtaining property by deception" offences and 7 "simple possession" offences.

13. Owing to Charge 6, a DATC Report was obtained. It confirmed that the defendant is not a drug dependant.

14. Defence counsel Mr. POON informed me that the defendant works as financial agent earning $13,000 per month. Letters written by the defendant and his employer were placed before me; their contents are duly noted. Mr. POON submitted that the present case involves a "small-scale operation" whereas the financial loss involved is about $26,000.

15. For Charges 1 to 4, Mr. POON cited cases including HKSAR v CHAN Ka Chung CACC 379/2010, The Queen v CHAN Sui-to & another [1996] 2 HKCLR 128 and HKSAR v TU I Lang CACC 464/2006. According to those authorities, credit card offences are serious and must be deterred. Even a small scale credit card fraud with small losses by an offender who is not alleged to be part of a larger syndicate can attract a starting point of 3 years' imprisonment.

16. A clear message must be conveyed to the general public that credit card fraud is a serious crime, which affects Hong Kong's reputation as an international trade and finance centre, and that offenders would not be treated lightly. In HKSAR v CHEN Wing Hong CACC 40/2005, the Court of Appeal observed that "… in this day and age the integrity of the credit card system is highly important and those who attempt to beat the system by fraudulent methods necessarily erode the confidence which people are entitled to place on this aspect of modern commercial life."[1]

17. In HKSAR v Tandon William CHAING CACC 404/2012, Macrae J (as he then was) endorsed a starting point of 3 years' imprisonment for the unauthorized use of 1 credit card belonging to another person on a single occasion in order to obtain jewellery and watches which valued $56,116 in total.[2]

18. When determining the proper starting point for each charge, I have borne in mind the sentencing principles laid down in CHAN Sui-to. I find the following features exist in the present case :-

(i) 1 person and at least 7 forged credit cards were involved;

(ii) little or no advance planning was required (since the credit cards were not even in the defendant's name);

(iii) no evidence of any international element involved;

(iv) all 4 offences took place within a week and the defendant targeted at the same shop repeatedly; and

(v) the defendant has similar convictions.

19. In the circumstances, I adopt a starting point of 3 years' imprisonment each for Charges 1 to 4. With the guilty pleas, the sentence is reduced to 2 years each. Apart from this, I see no other mitigating factors which warrant any further reduction.

20. Bearing in mind the totality principle, I consider a global starting point of 3.5 years' imprisonment appropriate for Charges 1 to 4. With the guilty pleas, the overall sentence is reduced to 28 months. To achieve this result, I order: (i) the sentences for Charges 1 and 2 to run concurrently; (ii) 2 months in Charge 3 to run consecutive to Charges 1 and 2; and (iii) 2 months in Charge 4 to run consecutive to Charges 1, 2 and 3; thus arriving at a total prison term of 28 months.

21. Charge 6 is separate and distinct from the credit card offences. The defendant is no stranger to drug-related offences either; he is clearly a repeated offender of "simple possession". For possession of 0.34 gramme of ketamine, I adopt a starting point of 6 months' imprisonment. With the guilty plea, the sentence is reduced to 4 months. Having considered the totality principle again, I order the sentence for Charge 6 to run consecutive to Charges 1 to 4. The total prison term for all 5 charges is 32 months.