HKSAR v. NG KIM CHAU AND OTHERS

DCCC782/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 782 OF 2010

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Reasons for Sentence

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1.  The four defendants before me have pleaded guilty to the various charges they have faced. The first three defendants, offences involve false credit cards. The 4th defendant’s, offence is one of handling stolen goods, which were the goods purchased by the false credit cards.

2.  1st defendant, you have pleaded guilty to three charges before me.  The 1st and 2nd charge was that of using a false credit card and the 4th charge for possession of false credit cards which involved a total of five credit cards.

3.  2nd and 3rd defendants, you have pleaded guilty to the same charge, Charge 3, of using a false credit card. 4th defendant, you have pleaded guilty to the 5th charge of handling stolen goods.

4.  For the using of false credit card, that offence was contrary to section 73 of the Crimes Ordinance, and for the possession of false credit cards, that was contrary to section 75(1) of the Crimes Ordinance, and for the handling of stolen goods, that was contrary to section 24 of the Theft Ordinance.

5.  I turn now to the facts of the case.

6.  As an overview, on 28 April 2010, the police mounted an operation in making observations of persons using false credit cards to make purchases at shops in the Mong Kok district.

7.  Whilst making observations, they had observed the 2nd and 3rd defendant go into a shop called “Grazie” and make a purchase. When the 2nd defendant came out of the shop, he then threw away a credit card into the rubbish bin, to which the police later retrieved and seized.

8.  Later, the 2nd and 3rd defendant were followed to a restaurant in Mong Kok, and that restaurant was called “Kai Kee”.  At the same time, the 4th defendant was sitting at a table in that restaurant.  I will call that “table 33”.  D4 then went over to the 2nd and 3rd defendants’ table, table 61, and chatted with them.  During this period, the 1st defendant went to the restaurant and joined them at that table 61.  Four of them were, therefore, sat at the table.

9.  D4 then took the goods purchased by the 2nd defendant with the forged credit card, which were the two Gucci bags, and left the table without paying.

10.  Soon after that, the police moved in and the four defendants were then arrested.  At the table, some clothes and perfume were found, and these formed the subject matter of Charge 1 and 2 which involved D1, which I will deal later in my reasons.  These were purchased by forged credit cards.

11.  Upon search of D1, five forged credit cards were found in his possession.

12.  That, in essence, is the overview of the charges and I shall now deal with the specific charges and the facts themselves.

13.  The 1st defendant pleaded guilty to the using of forged credit cards, both on 28 April 2010.  They were two different credit cards but both named “Citibank MasterCard”.  One was in the name of Chan Lee-man; the other was in the defendant’s own name.

14.  In the 1st charge, the defendant had purchased goods from a shop in Tsim Sha Tsui called “Juicy Couture” and purchased clothing worth $4,300.

15.  In the 2nd charge, the defendant had purchased perfume from a Sasa shop valued at $590. 

16.  In respect of the 4th charge, as I mentioned, when the police had arrested and searched him, he had in his possession five forged credit cards, two of which were the cards used for the offences in Charge 1 and 2.

17.  In respect of Charge 3, that charge is charged against the 2nd and 3rd defendant jointly, and on the same date, that is 28 April 2010, the defendants went to a shop called “Grazie” in Mong Kok.  D3 remained outside as a lookout, while D2 went inside and purchased two Gucci bags at $18,500.  When D2 came out of the shop with the bags, he handed the bags to D3 and he then disposed of the credit card into a rubbish bin.  The police officers retrieved and seized the credit card.

18.  In respect of the 4th defendant, as mentioned in my overview, the 4th defendant was at the Kai Kee restaurant in Mong Kok and seated at a separate table from D2 and D3.  Later D4 went over to them and received the stolen Gucci bags purchased by D2 and D3 using the forged credit cards.  The receiving of the Gucci handbags was within two hours of purchasing the bags made by D2 and D3.  The 4th defendant knew that the Gucci bags were purchased using forged credit cards.

19.  I turn now to the mitigation put forward by the defendants’ counsel.

20.  Mr Mui, solicitor, acted for the 1st defendant; counsels, Mr Ronnie Leung, was instructed for the 2nd defendant; Mr Gary Lam, instructed for the 3rd defendant; and Miss Sabrina See, instructed by the 4th defendant.

21.  I have taken into account all that your counsels have said and put forward on your behalf in mitigation when considering the appropriate sentence to be passed upon you.

22.  I have, of course, also taken into account the relevant authorities when considering credit card frauds.

23.  1st defendant, you are 30 years of age, married with a wife in China, and have eight previous convictions, of which none are similar.

24.  I am informed by Mr Mui that since the break-up of your parents, you were at a crossroads of your life, and due to the bad influence of peers, you were led to a criminal lifestyle.

25.  Prior to 2006, you were gainfully employed in a concrete mix company.  I have received letters from your former employer, your sister and family friend, all asking for your leniency.  Since the marriage to your wife, however, you led a law-abiding life, but soon realised that you needed money to support her, and thus were led to the commission of these offences for quick gain.

26.  Under caution, you admitted that you purchased all five cards for $300 each, that is $1,500, from a stranger.

27.  D2, you are 33 years of age, single, educated up to Form 5, and have there previous convictions of which none are similar.

28.  You have written a letter to me expressing your genuine remorse and informed me that you know that you have to face up to your crime.  You ask me to sympathise with your family and the need to support your parents.

29.  You were a waiter and a bartender in a hotel, but you lost your job in 2009 and, due to financial pressure to support your parents and the mortgage, you tried to earn quick money by committing this offence.  You were told you would be given 10 per cent of the value of the goods purchased and you were told what and where to purchase those goods.

30.  3rd defendant, you are aged 44, educated up to Primary 6, single and have five previous convictions, all are not similar, four of them being for gambling, the other being theft when you were a youngster.

31.  Under caution, you admitted that you participated in this crime as you would be rewarded $200 and that was attractive to you.  As your job nature was not stable, you were led into the commission of this offence.

32.  I have also received a letter from you telling me that you are remorseful and you must take up the consequence of your wrongdoing.

33.  4th defendant, you are 44 years of age, married and have been to court on three occasions but with eight separate offences. Two of the offences are similar, for which in 2003 you received 16 months’ imprisonment, and in 2006 you received 1 year 8 months’ imprisonment.

34.  I have been informed that as regards the offence itself, you were just the receiver of goods but you were not the distributor of the goods.  Miss See has submitted that despite the other defendants purchasing other goods, you only received part of the goods purchased by the forged credit cards.

35.  On the whole, defendants, your counsel has asked me to treat this offence as leniently as possible, and as for the criminality, that it is on the lower side of those involved with credit cards.

36.  What I should say at the outset to you all, the strongest mitigating factor is, of course, your plea of guilty.

37.  The nature of the offence, as you I am sure, with regard to credit card, are well informed by your legal representatives is a very serious offence and one which warrants immediate custodial sentences.

38.  Your counsel have rightly referred to the case of Chan Sui-to as regard the factors to be taken into consideration when sentencing defendants for credit card frauds.

39.  Those involve:

(i) the size of the operation, that is whether it involves large sums of money or whether it concerned a large number of persons or forged credit cards;

(ii) the planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used and to what extent;

(iii) whether there is an international dimension;

(iv) fourthly, whether the accused plays a major role, is he running a syndicate, engaging in actual manufacture, organising the use of forged credit cards, or whether he is a mere cog in the wheel as a courier or a custodian or keeper; and

(v) fifth, whether there is a plea of guilty.

40.  I must look at this case as a whole.

41.  In respect of the monies involved, as for the 1st defendant, the monies was not large in terms of money as the total amount was $4,890.  As for the 2nd and 3rd defendants, the amount was larger to an extent, being a value of $18,500 for the purchase of two Gucci bags.

42.  For D1, there were five forged credit cards in his possession.  For the forged credit cards, it is known that what the court looks at is the potential losses on those credit cards.

43.  As I see it here, there was no international dimension, and as to each accused, it appears that they were mere cogs in the wheel, although they did eventually meet up together at the restaurant.

44.  For the 4th defendant, I do not consider there to be any distinction on his charge.  He was clearly involved with the 2nd and 3rd defendants in receiving goods which he knew were purchased by forged credit cards.  I, of course, have no evidence as to what he would have done with these goods or whether he was just obtaining advantage by knowing this, but I cannot say that this was a syndicate as such.

45.  In the circumstances, defendants, you shall be sentenced to the following terms of imprisonment.

46.  1st defendant, I take a starting point of 2½ years’ imprisonment for the 1st and 2nd charges, and giving you full credit for your plea, I reduce that term to 1 year 8 months.

47.  For the 4th charge, I take a starting point of 3 years’ imprisonment, reduced to that of 2 years, giving you full credit for your plea.

48.  Those terms, 1^st defendant, shall run concurrent to each other, giving you a total term of 2 years’ imprisonment.

49.  D2 and D3, I take a starting point of 3 years’ imprisonment.

50.  Giving you full credit for you pleas of guilty, those terms shall be reduced to 2 years’ imprisonment.

51.  D4, for the handling charge, I take a same starting point of 3 years’ imprisonment.

52.  Giving you full credit for your plea of guilty, I reduce that term to 2 years’ imprisonment.