HKSAR v. CHEUNG KUN LAM

DCCC9/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 9 OF 2009

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Reasons for Sentence

1.  The Defendant pleads guilty to one count of possession of a false instrument with intent, contrary to section 75(1) of the Crimes Ordinance.

2.  On 4 November 2008, there was a police operation to combat counterfeit credit cards activities. 

3.  At about 11.50 am, the Defendant was seen by the police officers going into a public toilet at Sheung Shui MTR Station.  About 10 minutes later, the Defendant was seen leaving the toilet and then boarding a MTR train.  The police officers followed the Defendant.  At about 12.45 pm, the Defendant alighted the train at Mong Kok East Station and then walked to the Grand Century Place in Mong Kok, Kowloon.

4.  At about 12.50 am, the police officers intercepted the Defendant on the 3rd floor of Grand Century Place.  They conducted a body search on the Defendant and found six counterfeit credit cards from the Defendant’s left trousers pocket. 

5.  The police officers then arrested the Defendant and cautioned him for the offence of possession of false instrument. 

6.  In the subsequent video-recorded interview conducted in the police station, the Defendant admitted that he agreed to act as a courier to carry the counterfeit credit cards at the reward of $1,500.  Upon instruction, he found the counterfeit credit cards at a cubicle in the public toilet in Sheung Shui MTR Station, and he was asked to deposit the same in a cubicle of the male toilet on the 3rd floor of Grand Century Place.  He also claimed that he delivered the credit cards just for the money, as he did not have any money to pay the rent. 

7.  Subsequent police investigation confirmed that four out of those six counterfeit credit cards were encoded with the  account data of a bank in Denmark.  No account data was found on the magnetic stripes of the other two cards.  It was estimated that the potential loss that could be caused by those six counterfeit credit cards was US$9,500.

8.  The Defendant is aged 48.  According to the Defendant’s counsel, the Defendant committed the offence because of economic pressure.  He had two previous criminal records, but that related to offences committed quite some time ago. 

9.  Possession of counterfeit credit cards is a serious offence.  The court in the past has repeatedly emphasized that such kind of offence would destroy the integrity of the credit card system.  In Chan Sui To and another [1999] 2 HKCLR the Court of Appeal had identified the factors to be considered in sentencing such kind of offence, including the size of the operation, the planning that has gone into perpetrating the fraud, whether there is an international dimension, whether the accused played a major role, whether there is a plea of guilty.

10.  In Cheng Sui Yin Cr App 468 of 2005, the defendant was intercepted at the Arrival Hall of Lowu Border Checkpoint.  Upon investigation, the defendant was found to be carrying a total of 14 counterfeit credit cards.  A starting point of 4½ years was approved by the Court of Appeal. 

11.  In HKSAR v Cheung Ka Wo [2002] 2 HKC 517, the Defendant used two credit cards to purchase goods with a value less than $9,000.  A starting point of 3 years was approved.  The same starting point of 3 years was adopted in the case of HKSAR v Tu I Lang CACC464/2006.

12.  I agree that there is no international dimension in this case, and the Defendant was only a courier in the operation.  I take into account the number of the credit cards found on the Defendant and the possible loss that can be caused by the improper use of the credit cards, I adopt the same starting point of 3 years’ imprisonment for the offence.  Giving the Defendant the one-third discount for his plea of guilty, the sentence is reduced to 2 years’ imprisonment, and this is the sentence I impose in the present case.