HKSAR v. CHEUNG CHI HUNG

DCCC218/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 218 OF 2012

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Reasons for Sentence

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1.  The defendant pleaded guilty to two counts of obtaining property by deception, Charges 1 and 2, and one count of attempting to obtain property by deception, Charge 3.

Admitted fact

2.  At about 5.15 pm, on 10 January 2012, Chi Yuk-fung, Jessica, PW2, was on duty at Wai Yuen Tong, at Ground Floor, 510 Nathan Road, Mongkok, “the shop”.  The defendant approached PW2 and offered to purchase one box of fish maw, one box of dry seafood combo and one box of dried scallop, “property 1”.  He presented an American Express credit card in the name of Lam Wai-man, “the card”, to PW2 for payment.  The transaction was successful.  The defendant left with property 1 and the card charged to.  The value of property 1 was $3,418.20. 

3.  At 5.40 pm on the same day the defendant went to the shop again.  He approached PW2 and offered to buy some Cordyceps, “property 2”.  The value of property 2 was HK$7,000.  He again presented the card to PW2 for payment.  Because of the value of property 2, PW2 called the credit card centre for a check.  Before the checking was completed the defendant rushed out from the shop, leaving the card behind.  He did not take away property 2, Charge 3.

4.  PW2 chased after the defendant and intercepted him near a Yau Ma Tei MTR exit.  The matter was reported to the police.  The defendant was arrested and cautioned.  Under caution the defendant stated that he had picked up the card on the street nearby by a chance, and he therefore tried to use it.  The card was seized.

5.  Upon further investigation it was revealed that the card had been used at Welcome Supermarket at No. 40 Waterloo Road, “the supermarket”.  At No. 40 Waterloo Road, the supermarket, at about 4.47 pm on the same day the card was presented to Wong Ha-ping, PW1, of the Deifa Company Limited, to purchase a bottle of wine and ten boxes of chocolate, “property 3”.  The transaction was successful, “Charge 1”.  The value of property 3 was HK$1,133. 

6.  In a subsequent cautioned interview the defendant admitted that he had picked up the card on the street nearby at about 5 pm on 10 January 2012.  He used the card in the supermarket and placed property 3 at a nearby rubbish bin.  He then used the card in the shop to buy property 1.  He again placed property 1 near a rubbish bin and went back to the shop for another purchase.  He did not know the whereabouts of property 1 and 3 and he did not think whether the card was a forgery or not. 

7.  The card was examined by the Government Chemist.  It was found to be a forged credit card.  The design detail of the card are different from the control card, and was also devoid of ultraviolet fluorescent print and had spelling mistakes.

The defendant’s background and mitigation

8.  The defendant is aged 27, married.  His wife lives in Mainland China.  He used to work as a cook and waiter but has been unemployed for two months prior to his arrest.  He committed the offences because of financial reasons.  His parents are divorced.  Both of them are in their 50s.  His father is unemployed.  His mother is a housewife, with kidney problems which require regular treatment.  The defendant was very remorseful and asked for leniency.

9.  Counsel submitted that the defendant alleged that he had picked up the card from the street and committed the offences out of greed.  He was cooperative upon arrest and supplied information about Charge 1 to the police.  The defendant has five previous convictions, three of which are related to dishonesty.  Counsel submitted that none of those convictions are related to forged credit cards.

10.  Counsel relied on the case of HKSAR v Tu I Lang CACC464/2006, and submitted that for such operations the appropriate starting point was 3 years or less.  She urged the court to be lenient with the defendant.

Reasons for sentence

11.  I have considered the facts of the case, the defendant’s background and mitigation and the relevant authorities.  I do not believe that there are forged credit cards lying around on the street to be picked up.  It is surprising that he says that he does not know the whereabouts of the properties 1 and 3 upon arrest as he did, in fact, place them near a rubbish bin.  However, I accept that this was a small scale unsophisticated operation involving only one credit card.  However, the defendant used the card in quick succession to commit three offences within the space of less than an hour.  This is an aggravating factor.

12.  I adopt a starting point of 3 years for each offence.  The defendant has pleaded guilty and is entitled to the full discount.  The sentence for each charge is therefore reduced to 2 years. All three charges were committed with the same card on the same day.  I order that the sentences for all three charges to be served concurrently.  That makes a total of 2 years.