HKSAR v. LEUNG WAI KIN AND ANOTHER

DCCC494/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 494 OF 2011

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Reasons for Sentence

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1.  The defendants have pleaded guilty to a number of offences and I have convicted them on their admission of the facts. The 1st defendant has pleaded guilty to the 1st, 2nd, 3rd and 4th charges and the 2nd defendant the 1st, 3rd and 4th charges. The first three charges concern the use of a false instrument and the 4th charge the possession of a false instrument. These false instruments were credit cards and the 4th charge concerns the possession of those credit cards. The defendants acted together in the offences to which they have pleaded guilty.

2.  The Summary of Facts the defendants agreed sets out the background to the offences, and that is that the police received information from the manager of the Market Place in Tseung Kwan O that he suspected forged credit cards had been used.

3.  The defendants were intercepted at a petrol station, Hiram’s Highway.  On search of the defendants three suspected forged credit cards were found and a Wellcome Supermarket receipt was found in the 1st defendant’s possession, and bottles of wine found in the car.  The three false credit cards that were found on the 1st defendant relate to the 4th charge that he faces, and those credit cards were a GM Card, a Capital One card, and a NSGB visa card.

4.  The admissions made by the defendants show that the 1st defendant had used the GM visa card to make purchases at a Market Place and a Wellcome Supermarket, and also a supermarket at Marina Cove, and those were the three charges that the 1st defendant pleaded guilty to.  The 2nd defendant admitted to being involved in the 1st and 3rd offences where the credit card was used, so there were a total of three fraudulent transactions at three supermarkets, the 1st defendant admitting his involvement in all three transactions and the 2nd defendant his involvement in the 1st and 3rd transaction.  What was bought was wine valued at some $4,900-odd.

5.  The 2nd defendant’s admitted involvement was as the driver of the car and the 1st defendant also admitted, as I have already said, the possession of the three credit cards.

6.  As far as the defendants are concerned, the 1st defendant has a clear record prior to today.  The 2nd defendant has been convicted of a serious offence in 2006 and served a lengthy term of imprisonment - 5 years and 9 months.  He was released from custody on 29 March 2010. 

7.  There seem to be some special circumstances in relation certainly to the 1st defendant’s situation so I obtained reports on both defendants.

8.  The 1st defendant is of clear record.  He is aged 24 years old and at the time of his arrest was on Comprehensive Social Security Assistance.  The defendant had a schooling record up to Form 3 and has intellectual problems.  The defendant’s mother is ill.  She suffers from mental illness, she has schizophrenia and is on anti-psychotic medication.  She had been monitored by the 1st defendant prior to his imprisonment for these offences.  The opinion of the doctor consulting is that she needs close monitoring and support from her son.

9.  The defendant became involved in these credit card offences on the acquaintance of a casual friend called Ah Shing and it was clearly an easy way of earning money for him.  He said, with respect to the 2nd defendant, he was just the driver taking him around.

10.  There is a psychological report on the 1st defendant and this describes the 1st defendant as having borderline intellectual functioning and lacks critical thinking, is susceptible to other’s suggestions, of poor consequential thinking and weak emotional regulation skills.  His skills in coping with everyday life tasks were poor.  It attributes his involvement in the offence to greed and reckless decision-making under peer influence, yet it does say the defendant has no difficulty in differentiating right from wrong.  His problem appears to lie in what we will call critical thinking and consequential thinking.

11.  The 2nd defendant is aged 29.  In March 2010 he worked as a driver after his release from prison.  He has worked as a construction worker since then, so on his release from prison the defendant has maintained a good working life.  The defendant is also married and his wife works at a beauty salon and then as a financial advisor.

12.  The defendant seems to have become involved in this offence on a kind of impulse.  He knew what the 1st defendant was up to and he helped him out by driving the car. 

13.  He is remorseful and he sees that this has undone all the efforts he had made since his release from prison.  No doubt he is taxing the patience of his family and his wife by this subsequent offence he has got himself into. 

14.  Really, this defendant seems to have acted very stupidly to undo all the good work he had done on his release from prison on an impulse in this way.  I am sure he will have learned a lesson from this.

15.  As far as the sentences are concerned, the defendants have involved themselves in serious offences.  The use of credit cards in these circumstances is a serious matter and warrants immediate sentences of imprisonment, and such sentences can be lengthy.

16.  The 1st defendant has been involved on the three occasions the credit cards were used and was in possession of three credit cards himself; and the 2nd defendant admitting his involvement on two of those occasions.

17.  The question is how to approach sentencing. Starting points for sentence in relation to using false instruments, the use of credit cards which are false, can range up to 3 years’ imprisonment. 

18.  Both defendants have mitigation which deserves to be taken into account, the 1st defendant and his borderline intellectual condition and also the illness of his mother and the care that he has given his mother in the past which will be lacking if he goes to prison, and the 2nd defendant, the clear efforts he has made to resume a normal life after serving a lengthy period of imprisonment. 

19.  What I shall firstly do is take these offences as one transaction. 

20.  The 1st defendant had been given some credit cards and went out to buy what were not very high value items, it was simply foodstuffs, so insofar as it is possible to have a less serious version of this offence this is one of those.  Fortunately, they were intercepted before they had the chance to go and make any further purchases.

21.  I consider that sentences of imprisonment will have to be imposed for both defendants.

22.  On each of the charges that the defendants face I shall take the same starting point, which will be 30 months’ imprisonment.  I shall reduce that by one-third to 20 months’ imprisonment in respect of each charge. 

23.  On the 1st charge both defendants will each serve 20 months’ imprisonment, and on the 2nd charge that the 1st defendant faces alone there will be a sentence of 20 months’ imprisonment; on the 3rd charge that both defendants pleaded guilty there will be a sentence of 20 months’ imprisonment for each defendant; and on the 4th charge where the 1st defendant pleaded guilty I shall impose a sentence again of 20 months’ imprisonment.

24.  Having regard to the overall totality, taking into account both the defendants’ mitigation, I shall order all sentences to run concurrently to a total of 20 months’ imprisonment for each defendant.

25.  I have just been informed that I did say originally that the 2nd defendant faced Charge 4, which of course he did not, and I in fact have not sentenced him on Charge 4 in any event.