HKSAR v. CHOW CHIU HUNG

DCCC 824/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 824 OF 2014

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REASONS FOR SENTENCE

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Introduction

1.  The defendant pleaded guilty to one charge of obtaining property by deception (Charge 1) and three charges of attempting to obtain property by deception (Charges 2 to 4).

Facts

2.  The facts are straight-forward.  Shortly stated, the defendant used a forged credit card bearing the name “Jacky Chow” at a wine shop and successfully purchased a bottle of wine which was worth $4,988.  The saleslady, however, became suspicious of the defendant and she caused the matter to be reported to the police.  Having obtained the first bottle of wine, the defendant tried to purchase a second one which was worth $13,800 with the same forged credit card.  This time, the transaction was not successful.  Seeing this, the defendant successively presented two other forged credit cards (all bearing the name “Jacky Chow”) for payment but failed.  Instead of desisting there and then, the defendant suggested that the saleslady break down the $13,800 into smaller sums of $7,000, $3,800 and $3,000 and tried again with the aforesaid credit cards.  As a result, the transactions for $7,000 and $3,800 were successful but the one for $3,000 was not.  Then, the police arrived and arrested the defendant. 

3.  Under caution, the defendant said that he acquired the credit cards when he picked up a wallet in a toilet shortly before the purchase.  He said that he used the credit cards out of greed and he intended to have the wines for his own use. 

Antecedent

4.  The defendant is now aged 42 years.  He has a clear record.  He has divorced his wife.  Their son, who has been taken care of by the defendant and the defendant’s parents, is now 18 years’ old. 

5.  I note that the offences occurred in 2011.  The reason why it takes so long for the case to come before court, I am told by Mr Swainston for the defence, is that the defendant had gone to Korea whilst on police bail for the present case but was subsequently detained there for fighting for a period of about one year, after which he went to Mainland China to work.  However, before his return, he had written to the police indicating that he would return and surrender.  The defendant was arrested upon returning Hong Kong.

Mitigation

6.  Mr Swainston said that the defendant committed the present offences out of momentary greed, as the defendant was unemployed at the time and was thus unable to pay for his son’s school fees and expenses.  The defendant has written a mitigation letter to the court saying that he is remorseful, that he wants to turn over a new leaf and be useful to the society and he asks for leniency. 

Sentencing principles

7.  This is a common credit card fraud.  The Court of Appeal has repeatedly emphasized that credit card offences are widespread and prevalent, and must be dealt with severely.  In the well-known case of R v Chan Sui-to & Another [1996] 2 HKCLR 128, the Court of Appeal listed out various factors which a sentencing judge will need to consider when ascertaining the sentence for credit card frauds, including:-

(a) the size of the operation, e g, whether it involved large sums of money, whether it concerned a large number of persons or forged credit cards;

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

(c) whether there was an international dimension;

(d) whether the accused played a major role, e g, running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he was a mere “cog in the wheel” as a courier or a custodian or keeper; and

(e) whether there was a plea of guilty.

These factors are, however, not intended to be exhaustive. The Court also pointed out that the sum of money involved is of course only one of the factors to be taken into account and it is not even the most significant factor.

8.  In the judgment of the Court of Appeal in HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517, which contained a comprehensive review of the level of sentences for those engaged in credit card fraud,the Court went further and said that the amount proved to have been lost by the fraudulent use of credit cards is not an important factor to be taken into account in sentencing for this kind of offences.  It is the potential for losses which is the most important consideration.

Sentences

9.  In fixing the starting points of the sentences, I take the view that the present case was a small scale, unsophisticated credit card fraud with no international dimension. There is also no evidence of a syndicated operation.  In these regards, the present case is factually very similar to the case of HKSAR v Cheung Ka Wo Johnny mentioned above where the Court of Appeal upheld the sentence of 2 years’ imprisonment after plea.  Although the defendant was unsuccessful in some of the transactions with the credit cards, it would not have reduced his criminality to any significant extent.  This is because he had done everything necessary for the commission of the full offences.  Besides, the fact that he continued to attempt to use the three forgedcredit cards despite the unsuccessful transactions demonstratesthe boldness and extent to which he was prepared to commit the offences: see HKSAR v Yau Hoi Shan Shanly[2007] 3 HKC 284.  There is every reason to believe that but for his arrest he would have continued to use the cards until he was unable to do so. 

10.  I come to the view that the appropriate starting point for each of the charges is 3 years’ imprisonment.  After deducting the customary one-third discount for plea, the sentence on each charge is 2 years’ imprisonment.  Apart from the guilty plea, I see no justifications for further reducing the individual sentences.  The extent of mitigating effect of surrender to the authorities is always a contextual question: see HKSAR v Chow Tak Fuk (CACC 428/2004). The applicant had breached his police bail which is to his discredit.  He later surrendered which is to his credit.  The two things cancelled each other out. What the defendant gains by surrendering is an end to the anxiety of being a fugitive.  After he has served his sentence, he can begin a new life: see R v Lam Kuen [1997] 4 HKC 429.  

Totality

11.  Having regard to totality and the fact that the offences arose from the same incident, I order that the sentences are to run concurrently.  Thus, the defendant’s overall sentence is 2 years’ imprisonment.