HKSAR v.

DCCC13/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 13 OF 2010

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Reasons for Sentence

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1.  D1 has pleaded guilty to 5 charges of obtaining property by deception contrary to section 17 of the Theft Ordinance. Those charges were Charges 1, 4, 5, 6 and 8.

2.  After trial, I found the 2nd defendant guilty of Charge 9; that is, handling stolen goods contrary to section 24 of the Theft Ordinance.

3.  The facts are that on 16 April 2009 the 2nd defendant drove the 1st defendant around Hong Kong for the 1st defendant to shop at various shops situated in Kowloon and Hong Kong Island.  D1 had purchased various goods from a number of shops, using 3 forged credit cards to the total value of $28,000-odd.  The goods involved were 30 dumpling coupons at approximately $2,600, jewellery at $22,000 and dried seafood at $3,000.

4.  I found that the 2nd defendant knew that D1 was using forged credit cards to purchase goods.  Some of the purchased goods by D1 were left in D2’s vehicle.  The value of the goods left in D2’s vehicle was $23,000-odd.  The most valuable item left with the 2nd defendant was a gold necklace which was purchased for $18,180.

5.  Mr Chan for the 1st defendant and Miss Cheung for the 2nd defendant has mitigated fully on their behalf.  I have taken into account all they have had to say.

6.  For the 1st defendant, he is aged 58 and has 6 previous convictions which include 57 different charges.  All of those charges relate to offences of dishonesty.  Eight of those offences relate to obtaining property by deception contrary to section 17, and 15 of those relate to obtaining property on a forged instrument.

7.  I am informed by Mr Chan that ever since the 1st defendant was a young lad he got himself addicted to gambling, as a result of which he was unable to find a job and did not have any savings.  This therefore led him to the commission of these offences.  The 1st defendant has received education up to university level, at the University of Hull, he is an educated man.  I am told that he is divorced with two daughters in their 30s, but sadly his family have deserted him and he is now a lonely man.

8.  I am informed that those previous offences of obtaining property by deception are not related to forged credit cards but relate to the defendant deceiving a company or companies in getting goods whilst he was a manager.

9.  His last release from custody was in January 07 and I am informed he has tried to rehabilitate himself.  I have a letter here from his employer stating that he works hard and is intelligent and he is a great loss to the company.  This was written by a general manager of the Tung Shing Video & Audio Company, situated in Yuen Long where the 1st defendant was a sales manager for the China market since 15 November 2009.

10.  The defendant himself has also written me a letter stating that he has pleaded guilty to minimise the waste and expense of the court and that he is sorry for breaking the law and causing inconvenience.

11.  Miss Diana Cheung for the 2nd defendant has mitigated fully on his behalf.  He is 29 years of age.  He has 6 previous convictions, 3 related to dishonesty, 2 related to violence and his last conviction was in 2001 of kidnapping for which he received a 10-year sentence.  He lives with his parents and has been a carpenter since 2007.

12.  I have received several letters written by his present colleagues, parents and girlfriend, telling me what a good and responsible, reliable, mature and kind person they have found the defendant to be.  They have all sought leniency for the defendant.  I have taken into account what they have had to say.  Perhaps most telling is the father’s discernment of the defendant’s personal character.  He said, “Concerning his personal character, he is slow in response to things around and not strong in thinking and therefore this incident happened.”  He believes he was brought into trouble by the others and asks me to be sympathetic about his son’s mistake.

13.  I am informed by Miss Cheung that since the defendant was incarcerated for some 7-odd years, he did not waste his time but took the Hong Kong School Certificate and got one mark, which is, I am told, a Grade E.  He has therefore made good effort to mend his ways whilst in prison and obviously since his release from prison, seeing these letters in support of his employment, he has worked stably at one company which is a workshop production company.

14.  I bear in mind that the facts for both the 1st and 2nd defendant arise out of the same incident, although they are charged with separate and different offences.

15.  What I have found here is that the 2nd defendant knowingly and willingly drove the 1st defendant around Hong Kong to shop with the forged credit cards.  They both benefited from the purchase of goods with the false credit cards but in fact on the facts as admitted before, and as found by me, the 2nd defendant benefited by receiving almost 70 per cent of the value of the goods purchased; that is, principally by keeping the gold necklace valued at $18,000-odd.  What D1 benefited would appear to be a substantially nominal amount than that D2 did.

16.  I propose to sentence both defendants on the principles of credit card fraud.  The principles have been quite clearly set out in the various authorities, but more particularly the guidelines on sentencing in respect of credit card frauds are laid down in The Queen v Chan Sui-to & Anor [1996] 2HKCLR 128.

17.  In considering the factors as laid down in Chan Sui‑to, I consider that the 1st and 2nd defendant played a similar role to each other.  Although D1 was the person who actually used the credit cards, D2 was the one who benefited from the use of the credit cards.  In my verdict, I had used the colloquial Chinese words, as was mentioned at trial, which was “che sau” which is the person who uses the forged credit card and “walking the card”, the person who benefits from the use of the forged credit cards.  The amount involved was about $20,000-odd.  The 1st and 2nd defendants were involved with 3 forged credit cards.

18.  Looking at the authorities, and particularly that of Tu I Lang, the usual starting point for this type of offence involving the amounts and the factors that I have mentioned is that of 3 years’ imprisonment starting point, I have categorised this operation as being one described as fairly small‑scale.

19.  D1 and D2, you have both served much time behind bars.  You are of extreme ages to each other.  D2, despite your youth, you have spent, I would say, at least half of it behind bars.  Although you appeared to go on the right track by maintaining a stable job, you were unable to keep away from your criminal underlying means and resorted to this very serious offence.  You have shown you have no remorse whatsoever.  As is your right, you have pleaded not guilty but the case against you was overwhelming.  D1, I am told that the reason for you committing this offence was because of your lack of funds and the fact that you live in China and you are unable to receive CSSA in Hong Kong.

20.  In taking all the factors into account, I take a starting point for both D1 and D2 of 3 years’ imprisonment.

21.  For D1, you have many similar offences of obtaining property by deception but those offences are not related to credit card frauds.  If they were, then there would certainly be cause for me to find that those were aggravating factors to take into account and increase the starting point.

22.  In the circumstances, I take a starting point of 3 years’ imprisonment; reduce that term to 2 years’ imprisonment, giving you full credit for your plea of guilty.  You will receive 2 years’ imprisonment on each charge to run concurrent with each other, making a total term of 2 years’ imprisonment.  That is for the 5 charges you have pleaded guilty to.

23.  For D2, for the offence of handling stolen goods in Charge 9, you will be sentenced to 3 years’ imprisonment.