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DCCC799/2011
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 799 OF 2011
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| Before:
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H H Judge Tallentire
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| Date:
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23 December 2011 at 10.27 am
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| Present:
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Mr Liu Yuen-ming, counsel on fiat, for HKSAR
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Ms Wong Lai-ying, Cecilia, of Joseph C T Lee & Co., assigned by the Director of Legal Aid, for the Defendant
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| Offence:
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(1) & (2) Using a false instrument (使用虛假文書)
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(3) Possessing false instruments (管有虛假文書)
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Reasons for Sentence
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1. Defendant, you pleaded guilty to two offences of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap.200.
2. You admitted the brief facts and I convicted you.
3. You denied one charge of possession of false instruments, contrary to section 75(1) of that same ordinance.
4. In accordance with normal procedure, I ordered that offence to be left on file and not to be proceeded with without leave of this court or the Court of Appeal.
5. The brief facts are as follows.
6. You are a Malay. You came to Hong Kong on 11 June of this year.
7. At about 2.15 pm on 12 June, you went to Enoteca, a wine shop at 63 Nathan Road, Tsim Sha Tsui, and went to the rack selling expensive wines.
8. PW1, a saleslady, recommended certain wine to you. You agreed to purchase two bottles of wine for HK$16,000 and HK$7,800 respectively.
9. PW1 took you to the cashier to pay. You presented a Standard Chartered MasterCard, which is Exhibit 1. PW1 noticed the printing and colour was blurred and the magnetic strip was thin. Being suspicious, she informed her colleague, who called the police.
10. PW1 then told you that the credit card machine was out of order and you would have to wait, but this was simply to stall until the police arrived.
11. At about 2.50 pm she noticed two plainclothes officers outside the shop, so she proceeded with the transaction. E1 was rejected.
12. You then gave her a DBS MasterCard in your name, which is E2, for payment. That transaction was successful.
13. When you left the shop with two bottles of wine, the officers stopped you and revealed their identity to you and searched you.
14. The searched revealed the two bottles of wine, E1 and E2, an HSBC MasterCard and a Citibank MasterCard and a Capital Card MasterCard, all in your name; also, a transaction slip and the invoice for the wine.
15. Under arrest and caution, you claimed that the five cards were genuine.
16. Interviewed later under caution, you claimed to have applied to four banks in Malaysia for the five cards, but you could not remember the address of the banks. You said you bought the wine as gifts. You only used Exhibit 2.
17. Later analysis revealed that Exhibits 1 and 2 were forged.
18. You are a man of hitherto clear record.
19. Mr Liu referred to three sentencing precedents. The tenor of those cases is to suggest a starting point of around 3 years in such case.
20. On your behalf, Miss Wong entered mitigation. She told me that you are 31 years of age, divorced, educated to Form 6. You had been the owner of a financial institution in Malaysia but this closed in 2009, so you are now unemployed.
21. You are the sole breadwinner of the family. You have to care for your son of 4, your mother of 58 and your grandmother who is 95.
22. She told me that in May of this year, you were involved in a car crash and used up all your resources to pay the medical bills, that you are very remorseful for this offence. It was committed out of financial necessity and greed.
23. She pointed out that you were not a member of a syndicate. You are of clear record and pleaded guilty. On your behalf, she asked for leniency.
24. I turn now to the sentence.
25. As I said, the thrust of the sentencing precedents is to suggest a starting point of around 3 years in these circumstances.
26. There is some mitigation here, in that the charges relate only to two credit cards. There is no suggestion that you are part of a syndicate, and all the goods taken have been recovered. It is clearly a small-scale offence.
27. Against that, of course, there is an international dimension.
28. I note your clear record.
29. Taking all mitigation into account and all the facts into account, I take a starting point of 33 months on each offence, reduced to 22 months for your plea of guilty.
30. You will go to prison for 22 months on each concurrent.
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