HKSAR v. TSE TING KIN

DCCC174/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 174 OF 2009

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Reasons for Sentence

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1.  Defendant pleaded guilty before me this morning to an offence of using a false instrument, namely, a forged credit card together with one Lau Yin-kai, contrary to section 73 of the Crimes Ordinance, Cap.200 (the 1st charge); and to an offence of possessing altogether five forged credit cards together with Lau Yin-kai, contrary to section 75(1) of the same ordinance (the 2nd charge).

2.  The facts of this case were quite straightforward.  The defendant and Lau Yin-kai attempted to use a forged credit card as particularised in Charge 1 to purchase four handbags totalling $28,900 in value at Louis Vuitton Shop at Tsim Sha Tsui, Kowloon.  The shop assistant was suspicious of the card, and a report had been made to the police.  And after the defendant and Lau left the shop, they were intercepted by the arriving police officers.  A police officer later found in Lau’s wallet altogether four credit cards, that is, one Bank One Visa Platinum Card in the name of Lau and one Washington Mutual Visa Platinum Card in the name of Lau, one Washington Mutual Visa Platinum Card also in Lau’s name, and also one Bank of America MasterCard issued in Lau’s name.

3.  Inside the defendant’s wallet, another policeman found a US Bank Visa Card issued in the defendant’s name.  Defendant admitted to the police that this credit card belonged to him and that it was a forged card.  Defendant was immediately arrested.  Under caution, he admitted that he was unemployed and he used this forged credit card to make purchases.

4.  In a subsequent cautioned interview, the defendant further admitted to the police that two days before the offence, he bought the credit card in question in Shenzhen, China, and he intended to use the credit card to make purchases, and then he would sell the purchased items to make money.  He did that because he was short of money.

5.  In relation to the four other credit cards found in Lau’s wallet, the defendant also admitted that he and Lau also bought the cards together in Shenzhen at the same time.  Together, they had planned to use those cards to make purchase in Hong Kong and they agreed to split the proceeds of the sales of the purchased items.  All these credit cards in question were subsequently examined by the government forensic scientist who found them to be forged.

6.  The defendant had six previous criminal records, but none of them is similar to the present offences.  Among all the criminal records, the most serious one seems to be the last record which is trafficking in dangerous drug, for which he was sentenced in the High Court for 5 years 1 month in 2003.  I was later told by defendant’s counsel that he was released in April 2006.

7.  The defendant is now aged 32.  He has an education of only Form 5 standard.  The defendant is married and his wife is now in the mainland.  I was told during mitigations that the reason why the defendant had committed the present offence was because he was in grave financial difficulty at the time.  At the time before he was arrested, he had been unemployed for about four months.  At the same time, his father was diagnosed to have suffered from cancer.  His mother was also not in good health.  The defendant had to pay the expenses for putting the father in an elderly home and also had to foot the medical bills.

8.  I was also further told that the co-defendant in this case, Lau, was in fact an ex-girlfriend of the defendant.  In short, counsel for the defendant told me that it was Lau’s ideas that defendant finally acceded to her request and purchased the forged credit cards in China, and he had no connection with the people in Shenzhen in relation to these credit cards.  I was told that Lau was since absconded after bail was granted.

9.  Using credit card is of course a very serious offence, but after carefully reviewing the facts of this case, this present case is one of the small-scale credit card offences.  According to the Court of Appeal decision in HKSAR v Tu I Lang CACC464/2006, the Court of Appeal has said that where the facts of the offence point to a small, unsophisticated operation involving one or a few forged credit cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate.

10.  The public prosecutor appearing in this case properly agreed that the present case is one of small-scale operations and the proper starting point is in line of the case which I have just cited. 

11.  The court never accepts economic reasons for committing an offence.  While I appreciate that the present prison sentence would impose somewhat a hardship to the mother who is now living together with the defendant, but family circumstances are not something which I can take into account to reduce the sentence in serious offences.  Defendant should think twice before committing an offence.

12.  This morning, I was shown some documents which indicated the defendant had been trying very hard in the past to improve himself by attending some courses and taking some vocational examinations.  Defendant should really seriously consider rehabilitating himself after duly serving the present sentence and not falling into the abyss of the crime again.

13.  After carefully considering the matter, I am of the view that in the present case, a starting point of 3 years is appropriate in relation to both charges.  I do not agree that the defendant played a lesser role in this case than Lau.  In any event, this is a joint-enterprise case.

14.  The only mitigating factor is defendant’s plea of guilty, albeit late but still he would be entitled to the customary one-third discount.  In the end, for each offence, defendant has to serve a sentence of 24 months.  The sentences are to run concurrently.