HKSAR v. LAU MEI LING

DCCC 678/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 678 OF 2010

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of using a false instrument, contrary to section 73 of the Crimes Ordinance, Chapter 200 (charge 1) and two charges of possessing false instruments, contrary to section 75(1) of the Crimes Ordinance (charges 2 & 3).

2.  Full particulars of the offences are set out in the facts admitted by the defendant.  In summary on the 11th April this year the defendant used a forged credit card in the name of LO Chi-fung, to purchase goods to the value of $626.30 from Wellcome supermarket (charge 1).  The defendant was arrested the same day and found in possession of the forged credit card used earlier and another forged credit card, also in the name of  LO Chi-fung (charge 2).

3.  The defendant’s home was searched and a further four forged credit cards were found, one in the name of LO Chi-fung, two in the name of CHAN Siu-ling and one in the defendant’s name.  The defendant admitted the cards belonged to her and knew they were forged (charge 3).

4.  In passing sentence I take into account the factors which a sentencing judge will need to consider in credit card frauds as set out by the Court of Appeal in R v CHAN Siu-to [1996] 2 HKCLR 128, including the size of the operation; the planning that had gone into perpetrating the fraud and whether the accused played a major role.  The factors were not intended however to be exhaustive but provide valuable assistance to the court.  The courts have repeatedly stressed that deterrent sentences are to be imposed. 

5.  I have carefully considered everything said by Mr Chow together with the content of the defendant’s letter, including that the defendant has recently given birth to a baby; she suffered depression at the time and that she was pressed to use the forged credit cards to repay a debt she owed.

6.  In addition to the baby, the defendant has a daughter, aged 12, from a previous marriage.  The background report details the care of the children, who are both looked after by the defendant’s mother, with the baby son subject to a Care and Protection Order.  The Tai Po (South) Integrated Family Service Centre is also following up the case regarding the welfare of the baby.  I am satisfied the children are well cared for.  Further I note the defendant committed the offences in full knowledge she was pregnant.  I am satisfied the fact the defendant has recently given birth is no ground for reducing the sentence to be imposed.

7.  The psychiatric report of Dr Chow submitted by the defence details history of the defendant’s drug induced psychosis.  The defendant’s current mental condition is stable.  There is no suggestion the offences are attributed in any way to the defendant’s psychiatric illness. 

8.  Where the facts of the offence point to a small unsophisticated operation, involving one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years or less may be appropriate (see HKSAR v TU I Lang CACC 464/2006 and HKSAR v WONG Chin-hang CACC 409/2008).  The Court of Appeal have however also upheld starting points higher than 3 years imprisonment for similar offending, see for example  HKSAR v AU Yeung Shu-sang CACC 474/2006; HKSAR v HAU Ka-kit CACC 390/2005; HKSAR v CHAN Wai-kin CACC 237/2005;      HKSAR v GUI Zhiqiang CACC 289/2005 and HKSAR v KITA Yasushi & another CACC 470/2006 cited by Mr Chow.  Each case is however to be decided on its own facts and circumstances. 

9.  On the facts I accept the defendant was involved in what can be described as a small-scale operation.  Taking into account six credit cards were involved, with one found on arrest and four at the defendant’s home indicating the defendant no doubt would have continued using forged credit cards had the police not apprehended her, I am satisfied that a starting point of 3 years imprisonment on each charge is appropriate.

10.  The defendant has similar previous convictions.  In 2005 for five offences of using a false instrument she received a total sentence of        20 months imprisonment.  That sentence has clearly not deterred the defendant.  I increase the starting points by 3 months imprisonment to      3 years and 3 months imprisonment (see HKSAR v AU Yeung Shu-sang               CACC 474/2006).  Giving the defendant full credit for her pleas of guilty the sentence on each charge is reduced to 2 years and 2 months imprisonment concurrent on each charge. 

11.  On the 24th November in DCCC 1167/2010 I sentenced LO Chi-fung to a total sentence of 4 years and 8 months imprisonment for offences of obtaining property by deception, handling stolen goods, possession of forged credit cards; possession of an identity card relating to another; possession of equipment for making forged credit cards and possession of drugs.

12.  The defendant was originally jointly charged with LO Chi-fung when the case was in the Magistracy.  The prosecution did not proceed against the defendant by which time she had spent just over 3 months in custody.  That period of time will not count in the computation of the sentence under section 67A of the Criminal Procedure Ordinance, Chapter 221.  Only time spent in custody in respect of the present proceedings will count.  I am therefore prepared to further reduce the sentence by 3 months.  The defendant goes to prison for 1 year and 11 months, concurrent on each charge.