HKSAR v. CHAN KIN KWOK

DCCC1394/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1394 OF 2011

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

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

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

Reasons for Sentence

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

The Charge and the Facts

1.  The Defendant pleaded guilty before me to one charge of “using a false instrument”, and one charge of “possessing a false instrument”, contrary to sections 73 and 75(1) of the Crimes Ordinance, Cap. 200, respectively.

2.  The false instruments involved were two forged credit cards.

3.  The Summary of Facts, which the Defendant admitted, disclosed that in the afternoon of 1 November 2011, the Defendant used a forged credit card to purchase an Apple iPad and a protective sticker with a total value of HK$5,063. The transaction was successful. However, after payment was made, the shop-assistant found the card suspicious. At that juncture, the Defendant grabbed the card and ran out of the shop. He was then intercepted by the colleagues of the shop-assistant. This is the subject matter of the 1^st charge.

4.  Upon arrival of the police, the Defendant admitted that as he was in need of money, he had to use the card for the purchase. Later, another forged credit card was seized from the Defendant upon search. Similarly, the Defendant admitted that the second card was a forged card and he intended to use it for the purchase should the first card fail. The second card formed the subject matter of the 2^nd charge.

Mitigation

5.  The Defendant is now aged 42. He is single. Prior to his arrest, he lived in a public housing estate unit with his 70-year-old mother who is a CSSA claimant. The Defendant was educated up to F.1 level. He used to work as a fork-lift worker, earning about HK$8,000 per month. However, the Defendant was unemployed at the time of the offence.

6.  The Defendant has been before the court on 9 previous occasions with 27 convictions. His early convictions were largely drug-related offences. However, between 2003 and 2010, he had 15 “using/possessing a false instrument” convictions and 4 “deception” and “fraud” related convictions.

7.  In mitigation, it was said that the Defendant is truly remorseful and he is minded to turn over a new leaf. Miss Tam told the court that the Defendant had obtained a fork-lift worker certificate in 2006. Upon release from the prison, he would find himself a job and would not re-offend.

Sentencing Considerations

8.  For offences involving forged credit cards, the Court of Appeal in R v Chan Sui-to & Another [1996] 2 HKCLR 128 set out a number of factors which a sentencing judge will need to consider in determining the appropriate sentence. These include the size of the operation, the planning involved, whether there was an international dimension, the role played by the Defendant, and whether there was a guilty plea. It was said that the sum of money involved is only one of the factors to be taken into account and it is not even the most significant factor.

9.  In HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517, the Court of Appeal further 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.

10.  In the present case, there were a total of 2 forged credit cards. The operation was simple. The Defendant simply went to the shop, produced the forged card, and tried making the purchase. Yet, it was clear that he was targeting high value goods as the item he sought to get was an iPad worth a few thousand dollars.

11.  In sentencing, I bear in mind all the above and that the Court has repeatedly said that the integrity of the credit card system is highly important and must be protected. Severe sentences are therefore called for as a deterrent. I also bear in mind the Defendant’s plea and all the matters urged in mitigation on his behalf.

12.  However, I cannot ignore the fact that the Defendant was last released from the prison on 4 October 2011 after being sentenced in respect of two counts of attempted fraud. Yet, within less than a month, he committed the present offences. This clearly shows that the sentences previously imposed did not have sufficient deterrent effect on the Defendant. This is a matter which I should take into account in considering the appropriate sentence.

The Sentence

13.  I accept that the present case was a small-scale operation, therefore, for each of these two charges, the appropriate starting point should be one of 3 years. However, in view of the Defendant’s repeated commissions of this type of offences and the fact that he re-offended shortly after his release from prison, I am going to increase the starting point to one of 39 months for each of the two charges.

14.  A one-third reduction will be given to the Defendant for the plea. Other than that, I do not see any other powerful mitigating factors which would warrant any further reduction in sentence. The Defendant is therefore to serve a term of 26 months for each charge.

15.  Having considered the totality principle and all the relevant matters, I order that the sentences in respect of these two charges are to be served wholly concurrently, making a total term of 26 months’ imprisonment.