DCCC556/2010

DCCC 556/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 556 OF 2010

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REASONS FOR SENTENCE

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1.  LEE Chi-shing the defendant in DCCC 556/2010 pleads guilty to three charges of obtaining property by deception, contrary to section 17 of the Theft Ordinance, Chapter 210. In DCCC 1167/2010 he pleads guilty to a further four charges of obtaining property by deception and one of attempting to obtain property by deception (charges 6-10); one charge of possessing false instruments, contrary to section 75(1) of the Crimes Ordinance, Chapter 200 (charge 19); one charge of possession of 0.96 grammes of methamphetamine hydrochloride (“ice”) and one charge of possession of apparatus fit and intended for the inhalation of a dangerous drug, contrary to sections 8 and 36 of the Dangerous Drugs Ordinance, Chapter 134 (charges 20 & 21).

2.  LO Chi-fung D1 in DCCC 1167/2010 pleads guilty to one charge of obtaining property by deception  (charge 11); one charge of handling stolen goods, contrary to section 24 of the Theft Ordinance (charge 12); two charges of possessing false instruments, contrary to section 75(1) of the Crimes Ordinance (charges 13 & 15); one charge of possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Chapter 177 (charge 14); one charge of  possession of equipment for making false instruments, contrary to section 76(1) of the Crimes Ordinance (charge 16); one charge of possession of 1.85 grammes of ice and one charge of possession of apparatus fit and intended for the inhalation of ice (charges 17 & 18).

3.  Yu Wai-on, Nelson D3 in DCCC 1167/2010 pleads guilty to five charge of obtaining property by deception (charges 1-5).

4.  Full particulars of the offences are set out in the facts admitted by the defendants.

DCCC 556/2010

5.  In summary between the 30th March and the 3rd April this year the defendant on three different occasions used three different forged credit cards to purchase computers from Dorman Consultants Limited to the total value of $45,420.  The salesman who handled the third sale found surprising the defendant had purchased computers with three different credit cards and therefore checked the records and discovered the three credit cards were in three different names. 

6.  On the 4th April the defendant returned to the shop to exchange certain spare parts, at which time the sales staff called the police.  The defendant was arrested and admitted he was asked by others to use the credit cards to buy the computers for which he was given $1,300 reward.

DCCC 1167/2010

7.  In summary on the 23rd June this year the police intercepted D1 when he was about to get on board a car.  D1 was carrying two bottles of brandy, which he later admitted he bought from “Ah Fai” knowing Ah Fai had purchased them using a forged credit card (charge 12). 

8.  D1 was found in possession of one identity card and one China Re-entry card, both in the name of Cheuk Wai-man and five credit cards, four in the name of Cheuk Wai-man and one in the name of Cheung Chi-lun.  Four of the credit cards were forgeries (charges 13 & 14).  The fifth card was genuine, being one of two credit cards which Cheuk Wai-man had lost on the 13th June.

9.  D1’s home was searched and a further 24 forged credit cards were found (charge 15) together with one notebook computer and one magnetic stripe card encoder, which could decode and encode information from and to magnetic stripe cards (charge 16).  Under caution D1 admitted that the computer was used for inputting data into forged credit cards through the use of the card encoder, which would transfer the data to the magnetic stripe of the credit cards.

10.  Investigation revealed that one of the 24 cards was used by D1 on the 19th June to purchase goods to the value of $2,051.90 from Park N’ Shop (charge 11).  The police also found in D1’s home the ice subject of charge 17 and a glass bottle with straws for inhaling the ice (charge 18).  D1 admitted the ice was for his own consumption.

11.  Investigation also revealed the genuine card of Cheuk Wai-man found on D1 had been used by D2 and D3 on the 13th June, the same day the card had been lost.  D2 was arrested on the 5th July and found in possession of two forged credit cards (charge 19).  D2 admitted the genuine card of Cheuk Wai-man was given to him by D3 together with the identity card and China Re-entry card of Cheuk Wai-man.  D2 used the credit card five times to purchase goods to the value of $16, 807.50 and then gave the credit card, identity card and China Re-entry card together with all the goods purchased with the card to D3.  In return D2 said he received a reward of $1000 (charges 6-10).

12.  During a search of D2’s home the police found the ice subject of charge 20 and the two inhaling devices subject of charge 21.  D2 admitted the ice was for his own consumption.

13.  D3 was arrested on the 8th July and admitted using the genuine card of Cheuk Wai-man on five occasions to purchase goods to the value of $11,830.  D3 subsequently passed the credit card to D2 (charges 1-5).

14.  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. 

15.  I have carefully considered everything said by Mr Yip, Mr Shaw and Miss Lau on behalf of the defendants together with the letters submitted by D1 and D2. 

16.  Mr Shaw refers me to the case of HKSAR v CHEUNG Ka-wo, Johnny [2002] 2 HKC 517 where an overall starting point of 3 years was taken for the use of two counterfeit credit cards.  This case was cited in HKSAR v TU I Lang CACC 464/2006 (referred to by both Miss Lau and Mr Yip) where the court said at paragraph 10, “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, then a starting point of three years’ imprisonment or less would be appropriate.”

17.  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 GUI Zhiqiang CACC 289/2005; HKSAR v CHAN Wai-kin CACC 237/2005 andthe case referred to by Mr ShawHKSAR v YAU Hoi-shan Shanly [2007] 3 HKC 284.  Each case is however to be decided on its own facts and circumstances. 

18.  In CHAN Siu-to the court said a sentence of 5 to 6 years after trial was appropriate for a medium size operation, with no elaborate planning and equipment, and without an international dimension.  In HKSAR v BIN Kei-chi & Another CACC 181/2005, a case where there was an obvious international dimension in that the defendants were taking the forged credit cards overseas, the Court of Appeal upheld an overall starting point of 6 years imprisonment for possession of 25 forged credit cards together with possession of a false travel document.

Starting points

DCCC 556/2010

19.  Whilst the amount involved is only one factor to be considered the total value of the goods obtained being $45,420 place the offences in the category of a small operation.  The defendant was however part of a wider organisation that supplied him with forged credit cards, which were purportedly issued by overseas banks.  On the other hand by using three different credit cards bearing three different names, to purchase goods from the same company, this can hardly be described as a sophisticated operation.  I am satisfied that a starting point of 3 years imprisonment on each charge is appropriate.

DCCC 1167/2010

D1

20.  D1 was clearly involved in credit card fraud on a larger scale than both D2 and D3.  The potential for loss by the possession of a total of 28 forged credit cards and a credit card reader, which he used to transfer credit card data to magnetic stripes of forged credit cards, was substantial.  The defendant was also in possession of the identity card and genuine credit card of Cheuk Wai-man, which was used by both D2 and D3. 

21.  I am satisfied that a starting point of 3 years imprisonment is appropriate for possession of the 4 forged credit cards found on arrest (charge 13);  5 years and 6 months for the 24 forged credit cards found in his home (charge 15) and 4 years imprisonment for possession of the credit card reader (charge 16).  A starting point of 18 monthsimprisonment is appropriate for possession of the identity card (charge 14) (see HKSAR v NG Pui-ling, Akina CACC 519/2005); 2 years imprisonment for obtaining property by deception (charge 11) and 12 months imprisonment for handling stolen goods (charge 12).

22.  The possession of the credit card reader and the identity card, in my view, increase the overall criminality of the defendant.  I am satisfied an overall starting point of 6 years imprisonment is appropriate for the credit card offences.  

23.  The defendant is also properly to be regarded as a persistent offender having appeared in court on seven occasions, amassing a total of 43 convictions, the vast majority of which are for offences similar to those he has pleaded guilty to today.  I am satisfied this factor increases the overall starting point by 6 months to 6 years and 6 months imprisonment (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830).

24.  Turning to the drug offences the Court of Appeal in HKSAR v MOK Cho-tik [2001] 1 HKC 261 at 267 said that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months.  I am satisfied a starting point of 12 months imprisonment is appropriate for possession of 1.85 grammes of ice (charge 17) and            3 months imprisonment for possession of the equipment for inhaling the ice (charge 18).

25.  The dangerous drug offences are separate and distinct from the credit card offences.  Considering totality of sentence I am satisfied an additional 6 months is appropriate.  This makes an overall starting point of 7 years imprisonment, which I am satisfied properly reflects the criminal culpability of the defendant on all charges. 

D2

26.  The total value of the goods in the four charges of obtaining property and the attempt is $16,807, again placing the offences in the category of a small operation.  The credit card being given to the defendant on the very same day the owner lost the card shows a close connection with a credit card syndicate. Further the possession of two more forged cards shows that the defendant no doubt would have continued using forged credit cards had the police not apprehended him.

27.  I am satisfied for the obtaining and attempt charges a starting point of 3 years imprisonment on each charge is appropriate (charges 6-10).   Similarly for the possession of two forged credit cards on arrest a starting point of 3 years imprisonment is appropriate (charge 19).  These offences were committed whilst the defendant was on court bail for the offences in DCCC556/2010.  This is an aggravating feature of sentence.  I am satisfied the starting points for these offences are to be increased by          6 months to 3 years and 6 months imprisonment.

28.  This leaves the drug offences.  Applying that said in MOK Cho-tik I am satisfied a starting point of 12 months imprisonment is also appropriate for possession of 0.96 grammes of ice (charge 20) and           3 months imprisonment for possession of the equipment for inhaling the ice (charge 21).  

Totality of sentence

29.  The credit card offences in DCCC 556/2010 and DCCC 1167/2010 are separate and distinct offences.  Taking into account that over a period of three months D2 used three forged credit cards on different days in March and April; and whilst on bail for these offences he unlawfully used a genuine card on five occasions one day in June and was on arrest in July found in possession of two further forged credit cards, I am satisfied that an overall starting point of 4 years and 6 months imprisonment is appropriate. 

30.  The dangerous drug offences are separate and distinct from the credit card offences.  Considering totality of sentence I am satisfied an additional 6 months is appropriate.  This makes an overall starting point of 5 years imprisonment, which I am satisfied properly reflects the criminal culpability of the defendant on all charges in both cases. 

D3

31.  D3 is concerned only with five charges of obtaining property to the total value of $11,830, which again places the offences in the category of a small operation.  D3 however is also closely connected to a credit card syndicate having also been given the credit card on the very same day the owner lost the card and after using the card passed the card to D2, who also used the card.  Taking into account all offences were committed on the same day using the same card I am satisfied that a starting point of     3 years imprisonment on each charge is appropriate.

Sentence

32.  Giving the defendants full credit for their pleas of guilty they are sentenced as follows:

D1 - DCCC1167/2010

Charge 11 – 1 year and 4 months imprisonment;

Charge 12 – 8 months imprisonment;

Charge 13 – 2 years imprisonment;

Charge 14 – 1 year imprisonment;

Charge 15 – 3 years and 8 months imprisonment;

All sentences on charges 11-15 to be served concurrently

Charge 16 – 2 years and 8 months imprisonment; 8 months consecutive and 2 years concurrent to charges 11-15;

Charge 17 – 8 months imprisonment; and

Charge 18 – 2 months imprisonment;

Sentences on charges 17 & 18 to be served concurrently, with 4 months consecutive and 4 months concurrent to charges 11-16.

I am satisfied a total sentence of 4 years and 8 months imprisonment, properly reflects the defendant’s criminality on all charges.

D2 - DCCC1167/2010

Charges 6–10 – 2 years and 4 months imprisonment on each charge;

Charge 19 – 2 years and 4 months imprisonment;

All sentences on charges 6-10 & 19 to be served concurrently

Charge 20 – 8 months imprisonment; and

Charge 21 – 2 months imprisonment;

Sentence on charges 20 & 21 to be served concurrently, with 4 months consecutive and 4 months concurrent to charges 6-10 and 19, making a total sentence of 2 years and 8 months imprisonment.

DCCC 556/2010

Charges 1–3 – 2 years imprisonment concurrent on each charge, of which 8 months is to be served consecutive to the sentence in DCCC 1167/2010 and 16 months concurrent.

I am satisfied a total sentence of 3 years and 4 months imprisonment properly reflects the defendant’s criminality in both cases.

D3 - DCCC1167/2010

Charges 1- 5 – 2 years imprisonment concurrent on each charge