DCCC753/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 753 OF 2010

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Reasons for Sentence

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1.  This morning, D1 pleaded guilty to one charge of “using a false instrument”, contrary to section 73 of the Crimes Ordinance, Cap. 200 whereas D2 pleaded guilty to one charge of possessing a false instrument, contrary to section 75(1) of the Crimes Ordinance, Cap. 200.

2.  The false instruments involved were forged credit cards and one such card was found on each of the Defendants.

3.  The facts, which the Defendants admitted, are relatively simple. In the afternoon of 5 June 2010, D1 entered a game shop in Sham Shui Po and requested to buy a Play Station 3 video game console, two video games and a controller in the total sum of HK$3,140. D1 produced a forged credit card, that is, “The GM Card” which was in another person’s name, for payment of the goods. However, the card reader displayed a warning notice and D1 was then asked to produce his identity card for verification. He refused and the police were called. D1 tried to flee but was subdued.

4.  In the meantime, D2 approached the shop and tried to distract the shop assistants. D1 tried to flee again and D2 assisted by blocking the way of D1’s pursuers. Eventually, both D1 and D2 were subdued. When the police arrived, a forged credit card “Chasefreedom” in D2’s own name was found inside D2’s wallet.

5.  Under caution, both D1 and D2 admitted buying the cards from a friend at the costs of HK$1,000 and HK$2,000 respectively.

6.  D1 is now aged 27 and has a clear record. He is single. It was said that D1’s parents separated when he was young. He then lived with his father but later moved to live with his mother. D1 had been to New Zealand to further his studies but because of the family’s financial difficulties, he returned to Hong Kong without obtaining any academic qualifications. After ceasing his studies, D1 had been employed as a security guard but he was unemployed at the time of the offence. In May this year, D1 happened to bump into one of his friends and he was then persuaded to get the forged credit card for use. However, he did not use it immediately and when he used it on 5 June, he was arrested. In fact, the card which D1 had got turned out to be not usable as the card reader would send out the message “forfeit the card”.

7.  In mitigation, it was said that the facts of this case make it appropriate to have a lesser sentence imposed as only one card was involved, that D1 was making purchases for his own, not for buying valuable items in exchange for the commissions, and that the card simply could not be used because of the warning message and for the reason that the card was not in D1’s own name and that he could not provide any identification document for verification in case any enquiries arose.

8.  D2 is now aged 22 but he was 21 at the time of the commission of the offence. He has a clear record, is single and lives with his family. After D2 has completed Form 4 education, he started taking up different employments. At the time of the offence, he was unemployed. It was said that D2 committed the offence out of greed and foolishness as he was in need of money at that time.

9.  In mitigation, it was said that as only one card was found in D2’s possession and he had not used it, the facts of this case make it appropriate to have the lowest bracket of the sentences imposed.

10.  For offences involving forged credit cards, the Court of Appeal in R v Chan Sui-to & Another  [1996] 2 HKCLR 128 set out a number of factors which a sentencing judge will need to consider in determining the appropriate sentence. These include the size of the operation, the planning involved, whether there was an international dimension, the role played by the Defendant, whether there was a guilty plea, etc. It was said that the sum of money involved is only one of the factors to be taken into account and it is not even the most significant factor.

11.  I note that, in the present case, only one forged credit card was involved in the case of each Defendant. The operation was simple, that is, each of them intended to use the card to make purchases. Although D2 had the card made in his own name, he had not used it when he was arrested. D1, however, indeed tried to use it and he sought to get several items during one transaction. The amount involved was slightly over HK$3,000 and was not a particularly large sum. However, in HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517, the Court of Appeal said that it was the potential for losses, rather than the actual loss, in relation to the fraudulent use of credit cards that was important in sentencing for this kind of offences.

12.  In this case, I, however, accept Mr. McGowan’s submission that because D1’s card would cause the card reader to send out an alert message, probably the card could not be used without the forgery being detected and the likelihood of causing losses to the shops would be low.

13.  In sentencing, I bear in mind that the Court has repeatedly said that the integrity of the credit card system is highly important and must be protected and that severe sentences are called for as a deterrent. Having considered all the facts of this case and the matters urged upon me in mitigation, including the Defendants’ background, the clear record, and their pleas, I am going to adopt a starting point of 24 months for each of the charges. A one-third reduction will be given to the Defendants for their pleas.

14.  D1 is therefore to serve a term of 16 months for charge (1) and similarly, D2 is to serve a term of 16 months for charge (2).