HKSAR v. KLAVINS EDUARDS

DCCC 972/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 972 OF 2013

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Reasons for Sentence

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1.   The defendant has pleaded guilty to one charge of using a false instrument and another charge of possessing a false instrument.

2.   The facts admitted by the defendant can be summarised as follows.  On 16 August 2013, the defendant went to an electrical appliances shop and used a Chase Visa credit card in the name of Izidor Gubec to buy a mobile phone valued at HK$3,698.  The salesperson swiped with the credit card machine, and the transaction was successful.  He handed the credit card, together with the credit card receipt, to the cashier.  The cashier, however, found that the credit card was of poor quality, and then confirmed with credit card centre that the credit card was forged.

3.   Police officers arrived.  Another Chase Visa credit card also in the name of Izidor Gubec was found from the defendant’s rucksack.

4.   The defendant is a Latvian passport holder who entered Hong Kong on 12 August 2013 and was permitted to stay until 10 November 2013.  The defendant is 23 years of age, and he has no criminal conviction in Hong Kong.  He is a resident in Latvia.  He was a window cleaner before he came to Hong Kong.

5.   Mr Pickavant, solicitor for the defendant, in his mitigation describes the defendant as a stupid and naïve young man, as the credit card he used is of such a poor quality that everyone can detect its falsity.

6.   It is submitted that apart from the defendant’s plea of guilty, his relatively young age should also be considered in his favour.  Mr Pickavant draws my attention to the often cited case of HKSAR v Tu I Lang [2007] HKCU 859, CACC 464/2006.  Emphasis is placed in particular on paragraph 10 of the judgment, where the Court of Appeal says:

“Where the facts of the offence point to a small, unsophisticated operation involving only one or a few forged cards, uncomplicated by other evidence materially linking the offender to a large operation, then a starting point of 3 years’ imprisonment or less would be appropriate.”

7.   There is no tariff for the two offences. The relevant sentencing circumstances in credit card fraud are set out in R v Chan Sui To [1996] 2 HKCLR 128.  Credit card fraud is regarded as a very serious offence in Hong Kong.  It is regarded as serious because not only does it cause losses to businessmen, but it also erodes the credit card system and damages Hong Kong’s standing in the international community.

8.   I accept that the present case is a small-scale operation of credit card fraud.  The value of the property that the defendant attempted to deceive is relatively small.  However, in HKSAR v Ng Swee Thiam [2000] 1 HKLRD 772, the Court of Appeal emphasised that it is the potential for loss which is the most important consideration.

9.   In HKSAR v Watt Siu Hung CACC 93/2001, the value of the goods obtained by two forged credit cards was slightly more than $3,000.  The Court of Appeal said the starting point of 3 years’ imprisonment was on the high side, but was not manifestly excessive. The court commented that there was every reason to believe that but for his arrest, the defendant would have continued to use the credit cards.

10.   In HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517, the offences related to the fraudulent use of two counterfeit credit cards in purchasing cosmetics worth less than $9,000.  A starting point of 3 years’ imprisonment for the two offences was upheld by the Court of Appeal.

11.   There was no suggestion of an international dimension and syndicated operation in the last two cases.  In the present case, although only one false credit card was used, another false credit card was also found in the possession of the defendant.  I believe but for his arrest, he would have continued to use the cards.

12.   There is also an international element in the present case.  The defendant entered Hong Kong as a visitor on 12 August 2013 and committed the present offences just four days after his arrival.

13.   Having taken all circumstances into consideration, I will take 3 years as the starting point for both offences.  I will not allow the defendant’s stupidity as a mitigating factor.  It is worthy to note that however poor was the quality of the credit cards, the salesperson was indeed deceived, and the transaction was approved initially by the credit card machine.

14.   The defendant is already 23.  His age cannot play any part in mitigation.  The only mitigating factor in his favour is his plea of guilty, for which he will get one-third reduction.

15.   The defendant is sentenced to 2 years’ imprisonment on each of the two charges, and the sentences are to run concurrently.  The total term of imprisonment remains 2 years.