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DCCC1133/2008
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1133 OF 2008
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Before: H H Judge Browne
Date: 5 January 2009 at 3.02 pm
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Present:
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Mr Bobby Cheung, PP of the Department of Justice, for HKSAR
Mr Alexander Lee, of Messrs Li & Partners, assigned by the Legal Aid Department, for the Defendant
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Offence: Using a false instrument, etc. (使用虛假文書等罪項)
Reasons for Sentence
1. The defendant has pleaded guilty to seven charges. Five of those charges relate to his using or attempting to use forged credit cards in order to obtain goods from shops. One of the charges relates to his possession of two forged credit cards, and the 7th charge relates to his possession of 0.9 grammes of ketamine.
2. The first two charges, the charges of using a false instrument and possession of a false instrument, were committed on 6 September. Plainclothes officers were on duty on 6 September at about 4 pm when they were conducting an anti-crime patrol in Aberdeen Centre. They saw the defendant and another man acting furtively. The defendant was seen to go into a shop called First Edible Nest Outlets in Tung Sing Road in Aberdeen. He expressed interest in buying some birds’ nests. The saleslady at the shop invited him to enrol as a VIP to take advantage of certain discounts, and he filled in a form using a forged CitiBusiness card, the subject of the charge, in order to fill in the form and provide details.
3. The birds’ nest he sought to purchase was valued at $6,120. And having swiped the card, the saleslady failed to obtain the approval from the card centre, and the defendant presented his own Nanyang Commercial Bank EPS card for payment. There were insufficient funds in that account, so he left the shop without making any purchase.
4. The officers followed the defendant when he left the premises and he was arrested a short time later and found to be in possession of the CitiBusiness card which he had used at the birds’ nest shop and also a Bank1one Platinum Cash$In Visa Card, both of which turned out to be forged.
5. He was arrested and cautioned, and when interviewed, he said that two weeks prior to the offences, he met a person called Lau Bei. He said he was in financial difficulties. Lau Bei said that he could provide him with credit cards to make purchases, and the purchase would be given to Lau Bei and the defendant would be allowed to keep 10 per cent of the value of the goods sold, and another male called Fei Kei would accompany him to the shops.
6. The police detained the defendant that day and later bailed him pending forensic examination of the bank cards which had been seized. I am told that the defendant was due to return to the police station on 30 September, and it was whilst on police bail that the defendant committed Charges 3 to 7. On 19 September, the defendant went to a shop called Brand’s International and there he purchased a Chanel handbag for $15,500 using a forged MasterCard, and that purchase was successful.
7. Two days later, he returned to the shop and made a successful purchase of some handbags and belts, total value: $42,700. Later that same day, he went back to the shop to purchase belts worth $7,100. The following day, the staff of the shop received a telephone call to the effect that the MasterCards used were forged. The defendant returned to the shop at 4.30 on 22 September and attempted to make another purchase of a Chanel handbag valued at $32,800 and a Gucci wallet valued at $1,800 and presented a forged MasterCard to PW2, the sales assistant, to settle payment.
8. PW2 took his time in wrapping the goods in order to create time for the police to arrive. After waiting for a while, the defendant took the forged MasterCard and left the shop quickly. PW2, the member of staff, followed the defendant to a KFC restaurant nearby and waited outside. When the defendant came out of the restaurant, PW2 tried to stop him but was pushed away. He ran off but was intercepted by the police.
9. The defendant immediately admitted using forged credit cards to purchase goods at the shop. Again, he admitted he was entitled to 10 per cent of the resale value of the goods, and since he was heavily in debt, he had to earn money as quickly as possible.
10. The ketamine, the subject of Charge 7, was found wrapped in a $20 banknote in his front trouser pocket. No credit card was found.
11. The defendant has a clear record. I am told in mitigation that he is 24 years of age and he lives with his parents and two brothers, one older, one younger. His younger brother is still in education. His father is a removal worker and his mother is a housewife. The defendant completed Form 3 education and was gainfully employed until July 2008. He was working as a warehouse assistant earning 7,000 per month but, unfortunately, he lost that position.
12. It was urged upon the court in mitigation that the defendant was not the mastermind in connection with this offence. He was quite clearly being used by Lau Bei and Fei Kei who were sent to accompany him to the shops.
13. With regard to the possession of ketamine, I am told that the defendant is not a drug addict but was in possession of the drugs at the time because he was feeling pressure as a result of his arrest on the earlier offences.
14. I was referred to the case of R v Chan Sui To & Another [1996] 115 (Criminal Case). I also noted the more recent judgment, Tu I Lang CACC464 of 2006. At paragraph 10 of the judgment, McMahon J stated 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, that a starting point of 3 years’ imprisonment or less would be appropriate.
15. I note that Charges 3 to 6 in particular were committed whilst the defendant was on bail for the first two charges which were of a similar nature. People who committed offences on bail must expect that any sentences imposed for the fresh offences would be imposed consecutively. And I note that having been released on bail, the value of goods obtained and attempted to be obtained was considerably greater than the value of the goods for which he was originally arrested.
16. The main features of mitigation are that the defendant pleaded guilty at an early opportunity and that he has a clear record. Also submitted to the court is a letter from a social worker, Miss Kwok Mei-ha, who is a social worker with the Boys’ and Girls’ Clubs Association of Hong Kong. She has written to the court to say that she has known the defendant since 2002 and that the defendant has participated in many activities. Apparently, the defendant has spoken to her about his involvement in the current offences and it has become apparent to her that he is very remorseful for his involvement in these offences, and that he committed the offences whilst he was under great pressure.
17. As regards Charges 1 to 6, I take the view that a starting point of 3 years’ imprisonment would be appropriate in respect of each of the charges. In respect of those offences, the defendant has pleaded guilty and is entitled to the full discount for that plea. Therefore, the sentence for each of those offences would be one of 2 years’ imprisonment.
18. In respect of the first two charges, I order that the sentences of 2 years run concurrently. The sentence of 2 years’ imprisonment I impose on each of Charges 3 to 6 shall also run concurrent, but 6 months of that sentence will run consecutive to the sentences imposed in respect of Charges 1 and 2.
19. As regards the 7th charge, I take the view that a starting point of 6 months is appropriate and I reduce that to 4 months to reflect the guilty plea. I order that 2 months of that sentence run consecutive to the other sentences. The total period of imprisonment to be served by the defendant will therefore be one of 2 years and 8 months.
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