HKSAR v. CHAN KA CHUNG

 DCCC976/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 976 OF 2010

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Reasons for Sentence

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1.  The defendant, Chan Ka-chung, appears before me and pleads guilty to the following charges:

1) Charge 1, attempting to obtain property by deception;

2) Charge 2, using a false instrument; and

3) Charge 3, theft.

2.  Charge 1 and Charge 2 both took place on the 23rd day of February 2010, whereas Charge 3 took place on an unknown day in year 2009.

3.  Charge 1 concerns a false representation made by the defendant to a saleslady of Louis Vuitton Hong Kong Limited, situated at shop 5–6, Ground Floor, Harbour City, No. 5 Canton Road, Tsim Sha Tsui. The defendant made a false representation to the saleslady that the defendant was the genuine account holder of a Citibank VISA card numbered 4211-7501-3585-9004 in the name of Lau Yeuk-wa, and he was authorised to use the said credit card.

4.  Charge 2 concerns a forged credit card. It was a GM VISA card numbered 4979-3296-0157-8570 in the name of Lau Yeuk-wa. The defendant used the said forged credit card with the intention of inducing the saleslady of Louis Vuitton Hong Kong Limited to accept the same as genuine.

5.  For Charge 3, the defendant stole one Citibank VISA card numbered 4791-1140-0541-0190, the property belonging to Wong Hung-hing, Annie.

6.  At all material times, Miss Cheung Hiu-ching, Charlian, was a salesperson of Louis Vuitton Hong Kong Limited. At about 2.50 pm on 23 February 2010, Miss Cheung was on duty at Louis Vuitton Hong Kong Limited’s retail shop situated at Shop No. 5-6, Ground Floor, Harbour City, No. 5 Canton Road, Tsim Sha Tsui, Hong Kong.

7.  The defendant approached Miss Cheung and offered to buy a handbag and a wallet with a total value of $13,850. The defendant presented a Citibank VISA card numbered 4211-7501-3585-9004, the subject matter of Charge 1, in the name of Lau Yeuk-wa, for payment. The transaction was unsuccessful and the credit card was returned to the defendant. The defendant then left the shop.

8.  After a short while, the defendant returned and presented a GM VISA card, numbered 4979-3296-0157-8570 in the name of Lau Yeuk-wa for payment. The GM VISA card was the subject matter of Charge 2. Again the transaction was unsuccessful.

9.  Miss Cheung felt suspicious and she made a report to the police. The GM VISA card was returned to the defendant.

10.  The police soon arrived and arrested the defendant outside the shop in accordance with the identification made by Miss Cheung. The GM VISA card was seized from the defendant’s right hand. A third credit card, i.e., a Citibank VISA card, numbered 4791-1140-0541-0190 in the name of Wong Hung-hing, Annie, the subject matter of Charge 3, was also found from the front right pocket of the defendant’s trousers.

11.  The defendant was cautioned. Under caution and in relation to the Citibank VISA card in the name of Lau Yeuk-wa and the forged GM VISA card in the name of Lau Yeuk-wa, the defendant admitted that he intended to use these forged credit cards to obtain some goods for reselling as the defendant had no money. In relation to the credit card in the name of Wong Hung-hing, Annie, the defendant remained silent.

12.  The Citibank VISA card in the name of Lau Yeuk-wa, the subject matter of Charge 1, could not be recovered.

13.  During a subsequent video-recorded interview, the defendant admitted, inter alia, the following matters under caution:

1) On 23 February 2010 a male called Ka-lok gave him the Citibank VISA card in the name of Lau Yeuk-wa for buying goods at the shop;

2) Ka-lok promised to give him 10 per cent of the value of the goods successfully purchased as a reward;

3) The defendant therefore presented the Citibank VISA card in the name of Lau Yeuk-wa for payment of a handbag and a wallet at the shop;

4) As he failed to use the said credit card to settle the payment, he left the shop and informed Ka-lok;

5) Ka-lok then gave him a GM VISA card in the name of Lau Yeuk-wa for payment;

6) As the defendant failed to settle the payment again with the second credit card, he left the shop;

7) He was then intercepted by the police;

8) The defendant picked up the Citibank card in the name of Wong Hung-hing, Annie, from the top of his post-box a year ago; and

9) The defendant had never used the third credit card.

14.  The owner of the Citibank VISA card in the name of Wong Hung-hing, Annie, was located. Miss Wong confirmed that she had not suffered any loss in relation to the credit card.

15.  The GM VISA card was later examined by the government laboratory and it was found to be a forged credit card.

16.  The VISA card in the name of Wong Hung-hing, Annie, was confirmed to be a genuine credit card. It was issued by the Hong Kong Citibank, the credit limit of it is $14,000, and the cardholder is a Hong Kong resident.

17.  The defendant had a total of 31 previous convictions recorded against him on 26 different locations. Of the 31 previous convictions, 21 of them were dishonesty related.

18.  Mr Wong mitigates for the defendant. Mr Wong tells me in mitigation that the defendant is now aged 34, but he will turn 35 next week. The defendant was locally born. He is still single. He is currently residing with his maternal uncle at a public housing unit in Tai Wai, New Territories.

19.  The mother of the defendant passed away when the defendant was only 6 years old. The defendant was then taken care of by his father, until when the defendant reached 16. He then moved to live with his maternal uncle.

20.  The defendant received education up to Primary 5. He started working in a hair salon as an apprentice when he was only 16. Before his arrest, the defendant was working as an assistant hairdresser in Sham Shui Po, with a monthly income of around $6,000.

21.  Mr Wong tells me in mitigation that for Charge 1 and Charge 2, at the material times, the defendant’s income had been dwindling and became unstable because there were fewer customers. The defendant was prompted by his friend Ka-lok, and he wanted to get some quick money by using forged credit cards supplied by Ka-lok to purchase luxurious goods. He was promised a reward of 10 per cent of the value of the goods successfully bought.

22.  Mr Wong says the defendant did not realise the seriousness of the offences. Anyway, the attempt to use the forged credit cards was totally unsuccessful. The defendant is now very remorseful.

23.  For the 3rd charge, Mr Wong says the defendant had no intention to use the credit card at all. He only intended to keep the card as a status symbol.

24.  Mr Wong asked me to take into consideration the guilty plea entered by the defendant, the frank admission made by the defendant, and the cooperation with the police.

25.  Mr Wong says the victim suffered no loss in the present case, and the defendant was only acting as an agent with very limited or little gain. Mr Wong says Charge 1 and Charge 2 only concern two credit cards, and there is no evidence of any syndicate or large-scale operation.

26.  In sentencing the defendant, I have borne in mind the nature of the offences, the facts of the case as admitted by the defendant.

27.  I am only stating the obvious to say that credit card offences are serious offences, and offences of this kind must be deterred. In HKSAR v Cheung Ka Wo [2002] 2 HKC 517, the Court of Appeal said that even a small-scale credit card fraud with small losses by an offender who is not alleged to be part of a larger syndicate, can attract 3 years’ imprisonment on a guilty plea.

28.  Mr Wong, in mitigation, submits that in the present case, there is no evidence of any syndicate or large-scale operation.

29.  While I agreed with Mr Wong that there is no evidence that the defendant was involved in a large-scale operation, the fact that the defendant was working for Ka-lok, who provided the defendant with two credit cards, shows that the defendant was working for a syndicate, albeit a small-scale one.

30.  The fact that the shop in question suffered no loss was due to the alertness of the saleslady, Miss Cheung. It had nothing to do with the defendant.

31.  For the guilty plea entered by the defendant, the defendant is entitled to one-third reduction in sentences.

32.  For Charge 3, I find it difficult to believe that the defendant only intended to keep the credit card as a status symbol.

33.  For Charge 1 and Charge 2, taking all the matters into consideration, I will take 4½ years as the starting point. As said, the defendant is entitled to one-third reduction for his guilty pleas.

34.  For Charge 3, I take 6 months’ imprisonment as the starting point. Likewise, I will allow the defendant one-third reduction for his guilty plea.

35.  Whilst the defendant has no previous conviction related to credit card fraud, he is not a man of clear record. He had a total of 31 previous convictions recorded against him.

36.  Apart from the guilty plea, there is no other mitigating factor which can enable me to further reduce the sentence.

37.  For the reasons given:

(1)  on Charge 1, I sentence the defendant to 3 years’ imprisonment;

(2)  Charge 2, I sentence the defendant to 3 years’ imprisonment;

(3)  Charge 3, I sentence the defendant to 4 months’ imprisonment.

38.  I take into consideration the totality principle, and I order the sentences for Charge 1, 2 and 3 are to run concurrently with each other.

39.  In total the defendant has to serve a total of 3 years’ imprisonment.