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DCCC906/2011
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 906 OF 2011
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| Before:
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H H Judge A. Wong
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| Date:
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3 October 2011 at 10.58 am
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| Present:
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Mr Kwok Wing-lung, SPP of the Department of Justice, for HKSAR
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Mr Lai Yiu-kuen, of Dominic Y K Lai & Co., for the Defendant
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| Offence:
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(1) Attempted to use false instruments (企圖使用虛假文書)
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(2) – (4) Using a false instrument (使用虛假文書)
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(5) Possessing false instruments (管有虛假文書)
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Reasons for Sentence
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1. Defendant, you were convicted upon your guilty pleas of one charge of attempting to use false instrument (Charge 1), three charges of using a false instrument (Charge 2 to Charge 4), and one charge of possessing false instruments (Charge 5).
2. In sentencing, I take into consideration the whole circumstances of the case, including its nature and facts, your personal background and mitigation put forward on your behalf. I have also had regard to sentencing precedents.
3. The facts you admitted may be summarised as follows.
4. On 8 June 2011, you attempted to purchase three bottles of perfumes at a total price of $3,270 by producing three credit cards in turn but on each occasion the transaction was refused. You left without making any purchase. (Charge 1.)
5. On 11 June 2011, in another shop you produced a credit card to buy six boxes of masks at a total price of $2,280 (Charge 2). You then went to the abovesaid first shop, produced this credit card and bought six items of cosmetics at a total price of $3,720. Having done so, you bought two more packs of perfumes at a total price of $2,180 with the same credit card (Charge 3 and Charge 4).
6. When you left the shop you were arrested. The credit card which you had just used to buy the abovesaid items was found on you. It was in your name. Besides, eight other credit cards all in your name were also found in your possession.
7. Under caution, you admitted the credit card you had just used was false. It was given to you by a friend in Shenzhen, who told you to buy cosmetics with it. You also admitted that all credit cards found on you were false and given to you by the same friend on 11 June intended to make purchase in Hong Kong but these cards had not been used.
8. You were promised a reward of $500 for every item purchased at the price between $4,000 and $5,000. The two of you arrived in Hong Kong together on 11 June and you were going to bring the purchased items to the man when you were arrested. The man had already received the masks you bought.
9. You also admitted to have made three unsuccessful attempts to purchase with three credit cards provided to you by another man.
10. I was told that you are 58 years of age. Upon finishing primary education, you became a police officer. It is sad to see you end up in the present situation. I was told that after you left the police force you had worked as a waiter and a construction site worker. I was told that you were forced to retire in May this year since you became allergic in contact with buildings material.
11. You have a son 21 years old but he had left you several years ago. You lived alone until you married in the Mainland in early 2008. Your wife joined you in 2010 but soon deserted you. You have been living alone again.
12. The prosecution informed the court that you have three convictions of gambling back in 1988. You said due to the lapse of time you did not recall those convictions. In any case, for the purpose of sentencing I am going to disregard these minor matters which, if had taken place, took place a very long time ago.
13. Your counsel told the court that due to your allergy problem you sought treatment in Shenzhen. You have to attend the herbalist eight times a month costing you around $2,700. Since you were unemployed, this caused you tremendous financial problem.
14. In these circumstances, you were engaged by a man called “Sam” to carry goods for him from Hong Kong to Shenzhen, earning about $250 and $300 a day. This earning was not enough for the medical expenses and you had borrowed about $8,000 from Sam.
15. It was in these circumstances that you became involved in the present offences. Your counsel stressed that you did not play a major role, you were just merely a cog of the wheel.
16. Your counsel told me that you had worked as a volunteer.
17. I have considered the cases on sentencing of this nature of offence including those referred to me by your counsel. The cases to which I have had regard include the following.
18. In R v Chan Sui To [1996] 2 HKCLR 128, the Court of Appeal set out the various factors which a sentencing court should consider in a case of this nature. The factors include the size of the operation, the planning that had gone into perpetrating the fraud, whether there was an international dimension and whether the accused played a major role or was a merely a cog in the wheel. A deterrent sentence is generally called for.
19. In HKSAR v Ng Siew Tiam [2001] HKLRD 772, the Court of Appeal commented that it was the potential for losses which was the most important consideration.
20. It was held in HKSAR v Tu I Lang CACC464/2007, that:
“Where the facts of the offence point to a small, unsophisticated operation, involving only 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.”
21. You were part of a criminal operation involving the use of false credit cards. Whilst there is no evidence to show that the operation was more than a small-scale one, you were provided with nine credit cards in the second incident, which were all specifically made for you, thus showing a certain degree of pre-planning. The total value of goods which you had purchased with the false credit cards was only less than $10,000 but the potential of further use cannot be ignored.
22. You were equipped with three false credit cards in the first incident and nine false credit cards in the second incident. There was a cross-boarder element in the second incident. Whilst you said you were only making the purchase for other people, you did so for a reward and what you did harmed the credit card system which has become part of our living and has to be protected.
23. Immediate custodial sentences are called for in this case. Credit card offences are serious and must be deterred. I adopt a starting point of 30 months for Charge 1 and 3 years for each of the other charges.
24. You pleaded guilty and are therefore entitled to a one-third discount.
25. Having considered the whole circumstances including mitigation, I am of the view that this is the extent of discount you are entitled to in the present case.
26. Accordingly, I will sentence you to 20 months’ imprisonment for Charge 1 and 2 years’ imprisonment for each of the other charges.
27. The facts reveal that you had engaged in two different classes of offences. I do not consider wholly concurrent sentence appropriate.
28. Having regard to totality, I order the sentences for Charge 2 to Charge 5 to run concurrently and 7 months or the aggregate of this set of sentences to run consecutively to the sentence imposed on Charge 1. As a result, you are to serve a total sentence of 27 months.
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