HKSAR v. JEVGENI JS OSIPOVS

DCCC1173/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1173 OF 2010

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to two charges before this court. The first charge is that of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap.200.

2.  The second offence involved possession of false instruments, contrary to section 75(1) of the Crimes Ordinance.

3.  These two offences involved, firstly, the use of a false or forged credit card, and the second offence, possession of two forged credit cards.

4.  You are a Latvian national, visiting Hong Kong as a tourist.

5.  The first charge concerns a purchase you made with a forged credit card in your own name on 29 June 2010 at a shop on the 2nd floor of the Mong Kok Computer Centre in Nelson Street, Mong Kok, Kowloon.  You purchased two lenses, a camera, and a memory card.  The total value was HK$28,278.

6.  On that occasion the owner of the shop (employer) received a letter from the bank telling him that that card was false.  He then asked all his employees to review a CCTV recording that captured your transaction with the false credit card so that they could remember you.

7.  On that occasion, defendant, you had arrived in Hong Kong on 27 June 2010 and had departed Hong Kong on 6 July 2010.

8.  Within a month later you returned to Hong Kong on 5 August 2010, and less than two weeks later, on 13 August 2010, you committed the second offence.

9.  On 13 August one of the employees who was working at another shop, this time situated on 1st floor but at the same Mong Kok Computer Centre saw you in the shop and recognised you as the one who had used the false credit card on 29 June.  He saw you at about 6.30 pm and immediately informed his employer who made a report to the police.

10.  You had however left the shop and were followed by the employee.  At about 7.18 pm that employee identified you to police officers. The police officers intercepted you at the junction of Mody Road and Nathan Road in Tsim Sha Tsui, Kowloon.  You were searched, and found in your wallet were two forged credit cards in another person’s name of Vitaly Pelepshuk. 

11.  In a subsequent recorded interview through an English and a Russian interpreter, you claimed that you were tourist and had been in Hong Kong twice.  When you were in Hong Kong you met an unknown person, Vitaly, in a bar, and Vitaly offered a job to you.  After several days Vitaly gave the forged credit card in Charge 1 to you.  Vitaly asked you to purchase a list of items.  You purchased the items and gave those items and the forged card to Vitaly.  You had also received the two forged credit cards that you were found in possession of on 13 August from Vitaly.

12.  The number on the forged credit card in Charge 1 was confirmed by the Bank of China to belong to a cardholder resident in Hong Kong.

13.  As to the two forged credit cards found in your possession, one account number was found to belong to a person who is an account holder of the China Everbright Bank in Mainland China; and the other card account number belonged to a person who is an account holder of the Industrial Commercial Bank in China.

14.  Mr Wong, your counsel, has made very full and thorough mitigation on your behalf.  I have taken into account all that he has had to say in mitigation on your behalf when sentencing you.

15.  You are aged 32, and have a clear record.  I am informed that you have a diploma as a system analyst, and did continue education at university in the same field, but quit as you received a job as a manager in a construction company in Latvia.  You quit your university education as you found the salary was good and that you had an opportunity to get a flat.  However, as a result of the financial crisis in 2005 and 2006, you lost your job and therefore went back to part-time university studies and worked as a part-time freelance photographer earning an income of US$200 a month.

16.  You are married but have no children.  I am told that you are from a good background in that your parents are doctors in Latvia, and your sister is also now studying medical science.  That route, however, for you was not the one that you were interested in.

17.  I am informed that you became involved in this type of offence because you had borrowed some US$2,000 to rent or receive photography equipment in Latvia; and for you to repay the loan not over a long time, you were introduced to commit these crimes so that that would assist you to repay the loan.  You were therefore arranged to come to Hong Kong and committed the present offences.

18.  Mr Wong has urged upon me that the strongest mitigation factor in this case is your plea of guilty and your clear record.  I accept that that is so.

19.  It is unfortunate, I am told, that you are suffering some illnesses due to your heart condition whilst in prison, and that you are a foreigner in Hong Kong and have difficulties with language.  However, these two mitigating factors had been laid down by the Court of Appeal as not to be exceptional circumstances in reducing any term of imprisonment or sentence.  I would also add that I am informed that your medical illness is not at a terminal stage.

20.  Mr Wong, your counsel, rightly points out the case of Tu I Lang as to the matters to be considered in credit card forged cases.

21.  The matters to be taken into account is, of course, the size of the operation; whether it involved large sums of money; or whether it concerned a large number of persons or forged credit cards; the planning that has gone into perpetrating the fraud; whether it is elaborate or simple; whether technical skills were used and to what extent; whether the accused played a major role, i.e., running a syndicate, engaging in actual manufacture, organising the use of forged credit cards; or whether the accused is a mere cog in the wheel as a courier, or custodian, or keeper; whether there is an international dimension; and whether there is a plea of guilty.

22.  In your case, defendant, I accept that the sums of money was not very large, $28,000-odd.  It related to a total of three forged credit cards.  It appears to be quite a simple credit card fraud in that you went to a shop and used the forged card to purchase items.

23.  In this case, quite clearly there is an international dimension.  You had come from Latvia to Hong Kong on a deliberate mission to commit these credit card frauds.

24.  I have to say that I do not accept and reject the mitigation put forward by you for your reasons of committing these offences.  The numbers just do not make sense.  If you owed US$2,000 in equipment, that would equate to HK$16,000.  Your first purchase of $28,000 would have paid off that initial loan and more, almost double.  I find it hard to digest that you are not good at figures and did not pay much attention as to the money you were required to repay.  Your income was US$200.  Your loan or credit was 10 times your income.  This must have been on your mind.

25.  Despite the first offence almost paying off your loan, nevertheless, I see that you came back to Hong Kong again, and this time you had two forged credit cards found in your possession.  Clearly, there was potential for loss on those credit cards, and that is a factor I must take into account.

26.  This, however, does not take away from the fact - particularly put forward by Mr Wong in his mitigation - that you, however, may have been a mere cog in the wheel; and the amounts of money was not large.

27.  Your role, as I see it, in the syndicate was that to purchase goods.

28.  In considering the factors concerned in this case, defendant, I am of the view that a starting point for each offence should be one of 3 years’ imprisonment.

29.  Taking into account your plea of guilty, which is the strongest mitigating factor, the sentences will be reduced to 2 years’ imprisonment on each charge, and each sentence shall be served concurrently with each other, making a total term of 2 years’ imprisonment.