HKSAR v. FUNG CHUN KIT

DCCC 162/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 162 OF 2017

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REASONS FOR SENTENCE

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Charge

1.  The defendant pleaded guilty to two charges, namely, attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance (Charge 1), and possessing false instruments, contrary to section 75(1) of the Crimes Ordinance, Cap 200. 

Facts

2.  The defendant admitted to the following amended Summary of Facts.  Around 5.36 pm on 1 December 2016, PC15946 (PW1) saw the defendant walking in quick paces along Nathan Road towards Jordan.  The defendant was looking around nervously while counting a pile of cards taken from his right front trousers pocket.  PW1 followed the defendant and saw him entering a shop known as Foxx operated by Falcon Faith Holdings Limited at the address specified in Charge 1.

Charge 1

3.  Meanwhile, PW2, the shop manager, was working inside the shop.  The defendant requested to purchase seven iPhone 7 plus totalling HK$47,624.  The defendant presented one ICBC Union Bank card for payment.  PW2 inspected Exhibit P1, that is the card, and found its size, printing quality and thickness irregular.  Feeling suspicious about the card, he refused the transaction.  The defendant subsequently left the shop.

Charge 2

4.  Upon the defendant’s leaving the shop, PW1 kept following the defendant and intercepted him outside No 184 Nathan Road.  PW1 declared his police identity and searched the defendant.  As a result, Exhibit P1 and two Chongqing Rural Commercial Bank Union pay cards, namely, Exhibits P2 and P3, were seized from the defendant’s right front pocket of his jeans.  PW1 found there was no card owner’s name on Exhibits P1 to 3.  A signature of 馮俊傑 in defendant’s name was found on the back of Exhibit P1 whilst the signatures on Exhibits P2 to 3 had been crossed out. 

5.  PW1 declared arrest of the defendant and asked the defendant how he came by Exhibits P1 to 3.  Under caution, the defendant said that he was caught red-handed; he had nothing to say.  However, the defendant later claimed that the UnionPay cards (Exhibits P1 to 3) were given to him by a mainland friend who asked him to buy iPhone.  During his cautioned interview, the defendant said his mainland friend was called 馬仔 Ma Chai whose means of contact he did not know.  The defendant claimed he bumped into Ma Chai in Tsuen Wan a week ago.  Ma Chai then gave the defendant Exhibits P1 to 3 and asked him to buy seven iPhone 7 plus for him.  The defendant had only tried to use Exhibit P1 once inside Foxx for payment of seven iPhone 7 plus, but the transaction was unsuccessful. 

6.  The defendant told the police that he knew the passwords of Exhibits P1 to 3 but admitted he did not apply to the bank for them.  The defendant said it was Ma Chai who gave him Exhibits P1 to 3 and told him to use whichever card which worked and to throw away those which did not.  According to the defendant, when he was given the cards from Ma Chai, the signature on Exhibit P1 and the crossed-out signatures on Exhibits P2 and 3 were already there.  He also said that he did not know whose information was contained in Exhibits P1 to 3.

7.  PW3, officer of UnionPay International Hong Kong branch, examined Exhibits P1 to 3 and found the account numbers shown on Exhibits 2 and 3 did not match with the information in the magnetic strips.  As to Exhibit P1, although the information on the card surface matched with that in the magnetic strip, the microchip installed on it was missing.  PW3 confirmed that all were counterfeit cards.

8.  PW4, government document examiner, examined Exhibits P1 to 3 and found them poor in printing quality and were printed by means of inkjet printing method without any commonly encountered security features such as microprinting and/or ultraviolet fluorescent properties.

Previous criminal conviction

9.  The defendant has one previous criminal conviction.  That is on 17 December 2013, he was sentenced to 6 months’ imprisonment for the offence of going equipped for stealing.  

Antecedent statement

10.  Mr Tang, counsel for the defence, took no issue as to the contents of the antecedent statement which was read out in court by Mr Chan, counsel for the prosecution.  Mr Chan submitted the authority HKSAR v Tu I Lang CACC 464/2006 for the court’s consideration.  

Mitigation

11.  In mitigation, Mr Tang submitted that the defendant, aged 28, a degree holder, was in employment in a hotel in early 2015.  Since early 2016, he became unemployed.  The defendant in his self-written mitigating letter described that he was under financial stress as his father was unemployed and his younger sister suffered from kidney diseases.  In order to have some financial gain, he committed the present offences.

12.  A number of medical certificates were submitted to prove that Miss Fung, the defendant’s younger sister, aged 26, has serious kidney problem.  She had undergone a kidney transplant operation in June 2016.  In Miss Fung’s letter, she described the defendant as a very caring brother.

13.  The defendant’s mother and his fiancée also consider the defendant was under financial stress.  He had foolishly committed the present offences for monetary gain.

14.  In respect of the present offence, Mr Tang submitted that the defendant attempted to obtain property by deception.  It was unsuccessful, and therefore no actual loss was caused to the company of PW2.  Whilst he agreed that a starting point of 3 years’ imprisonment as stated in HKSAR v Tu I Lang was appropriate, he urged the court to give weight to the background of the defendant and to adopt a lower starting point.  He also referred to HKSAR v Hadebe Evelyne DCCC 683 of 2016.

Reasons for sentence

15.  In passing sentence, I take into account everything said on the defendant’s behalf by Mr Tang and everything written in the mitigating letters. 

Charge 1

16.  Charge 1 relates to credit-card fraud.  Time and again, the court has said that deterrent sentences are needed.  The court has outlined this approach to the offence of credit-card fraud in R v Chan Sui To & Another [1996] 2 HKCLR 128, and the approach is the same in respect of both forged credit cards and genuine credit cards used fraudulently.  It has been said in a small credit-card fraud of the most simple kind, a starting point of 3 years’ imprisonment can be appropriate.  This is because of the potential damage to the financial system of credit-card fraud (see also HKSAR v Lam Siew Chung).

17.  In determining the appropriate sentence, I have also considered HKSAR v Hoong Pang Chong CACC 344 of 2011.  In HKSAR v Tu I Lang CACC 464 of 2006, the Court of Appeal said:-

“Where the facts of the offence point to a small and sophisticated 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 3 years’ imprisonment or less would be appropriate.”

18.  The facts of the present case are serious.  It is noted that a forged credit card was used in an attempt to obtain seven iPhones by deception and the total value of these iPhones was $47,624 which is a large amount.  However, it is also noted that the defendant acted alone. 

19.  Having considered all the circumstances of the case, I come to conclude that it is a small credit-card fraud, and I adopt a starting point of 3 years’ imprisonment on Charge 1.

Charge 2

20.  In respect of the offence of possessing a false instrument, the defendant was found to have two forged credit cards.  I also adopt a starting point of 3 years’ imprisonment. 

21.  I do not agree with Mr Tang that I should adopt a lower starting point for both offences because of his family circumstances.  Those who commit offences should keep in mind the principle that the adverse effect of imprisonment upon an offender’s family is not a factor normally to be taken into account.  The defendant should have taken into consideration his family circumstances before he committed the present offences.  (See also page 360 of Cross & Cheung, Sentencing in Hong Kong (7^th edition))

One-third discount

22.  I have in mind HKSAR v Ngo Van Nam CACC 418 of 2016.  As the defendant has indicated his pleas of guilty on the plea‑day hearing and the case was adjourned to today for plea and sentence, the defendant is entitled to a full one-third discount of sentence.  As such, the sentence for each charge is reduced to 2 years’ imprisonment.

Totality

23.  Having considered all the circumstances of the case, including that the defendant offences were committed on the same day, I order that both sentences are to run concurrently with each other.  Accordingly, the defendant is sentenced to 2 years’ imprisonment for both charges.