HKSAR v. YIP CHUN KEI

DCCC693/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 693 OF 2010

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Reasons for Sentence

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1.  The defendant pleaded guilty to 2 charges of "Using a false instrument" and 1 charge of "Possessing false instruments".

Summary of Facts

Charge 1

2.  About 9 pm on 29 December 2009, the defendant visited the shop named in Charge 1 ("Location 1").  He tried to purchase a mobile phone, the price of which was $3,130, using the forged credit card particularized in Charge 1 ("Card 1").  The sales person, Mr. HO (PW1), noticed the poor printing quality of Card 1, he called the card centre for verification.  At this juncture, the defendant told PW1 that he would pay cash instead.  PW1 ignored him.  The defendant then left the shop without taking Card 1.  The Police was notified.

Charge 2

3.  About 7:00 pm on 26 April 2010, the defendant visited the shop named in Charge 2 ("Location 2").  A sales person, Miss LEUNG (PW2), recognized him for having attempted to use a suspected forged credit card in early March 2010. Upon seeing the defendant again, PW2 informed the Police secretly.

4.  The defendant tried to purchase some skincare products and settle the shop's membership fee, the total price of which was $1,660.40.  He presented the 2 forged credit cards particularized in Charge 2 (respectively "Cards 2 and 3") for payment but was unsuccessful.  The defendant then took back Cards 2 and 3, told PW2 that he did not wish to purchase the goods anymore and left the shop.

Charge 3

5.  PC 51195 (PW3) intercepted the defendant outside Location 2.  Upon search, PW3 found in the defendant's wallet the 8 forged credit cards particularized in Charge 3 (namely Cards 2 to 9).  Upon enquiry, the defendant told PW3 that he had just used Cards 2 and 3 to make purchase and that Cards 4 to 9 were also forged.  PW3 arrested him.

6.  A Government Chemist confirmed that Cards 1 to 9 are all forged credit cards.

7.  Under caution, the defendant admitted that he was jobless and was offered a job by someone named "Hor Lok".  Hor Lok gave him Cards 2 to 9 and instructed him to make purchases at Location 2.  If successful, he would be rewarded based on the price of the goods purchased.  The defendant tried using Cards 2 and 3 at Location 2 but was unsuccessful.  He also admitted that he had tried using Card 1 to purchase a mobile phone at Location 1.

Mitigation & Sentence

8.  The defendant is now 37.  He has 2 previous convictions of "Theft".  Mr. Richmond has helpfully set out the defendant's personal circumstances in his written submissions.  The defendant was only educated up to Form 3 and had problems with his lungs in 1993 and 2005.  In October 2009, he had a work-related accident for which he was hospitalized for almost 2 months.  Thereafter, he was unable to find employment and remained in financial difficulty.

9.  I note that all the credit cards used and seized are in the defendant's name.  In order to obtain forged credit cards bearing the user's name, some advance planning must be required.  Based on his admissions, the defendant was clearly manipulated by a counterfeit credit card syndicate.  The court has, time after time, expressed in very clear terms that having a physical disability or being in financial difficulty is no mitigating factor for committing a crime.  In Hong Kong, there is sufficient social welfare and many other forms of assistance offered to people in various difficulties like the defendant.

10.  According to the relevant sentencing authorities cited in Sentencing in Hong Kong (5^th edition), credit card offences are serious and must be deterred.  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.  A clear message must be conveyed to the general public that "credit card fraud" is a serious crime and that offenders would be punished by a substantial prison term.

11.  When determining the proper starting point for each charge, I have borne in mind the sentencing principles laid down in The Queen v CHAN Sui-to [1996] 2 HKCLR 128.  In the present case, I find the following features exist :

(i)  1 person and 9 forged credit cards were involved; goods in a total value of about $4,700 were attempted;

(ii)  some degree of advance planning was required (though probably not by the defendant), such as making the forged credit cards;

(iii)  no international element was involved;

(iv)  the defendant was instructed to shop with the forged credit cards and would be rewarded based on the value of the goods obtained;

(v)  the defendant made admissions upon arrest and pleaded guilty to all 3 charges; and

(vi)  none of the 2 shops had suffered any loss.

12.  Although Charges 1 and 2 are 4 months apart, I will treat all 3 charges arising from the same set of facts.  I consider 3 years imprisonment to be the appropriate global starting point.  Hence, for Charges 1 to 3, I adopt a starting point of 3 years each.  One-third discount is given for his guilty pleas, reducing the sentence for each charge to 2 years.  Apart from his guilty pleas, I see no other mitigating factors which warrant any further discount.  After considering the totality principle, I order the sentences for all 3 charges to run concurrently.  In other words, the total prison term for Charges 1 to 3 is 2 years.