HKSAR v. CHAN SIU SHING

DCCC301/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 301 OF 2011

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Reasons for Sentence

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1.  Defendant pleads guilty to three counts of using a false instrument and one count of possessing false instruments. On 25 January 2011, defendant tried to purchase a gold bracelet priced at $20,681 in a department store. He tried to pay with false credit cards. When one card failed, he used another. All payment requests were rejected in his three attempts using three different false credit cards (Charges 1 to 3).

2.  Defendant tried to leave the department store, but police stopped him just outside the store.  They found the three false credit cards and two other false credit cards in his person.  Those two other false credit cards are the subject matter of Charge 4.

3.  Under caution, defendant said he knew all the five cards were forged.  He bought them from Ah Kwan at $1,500 per card.  He admitted having used three of the five cards to try to purchase the gold bracelet.

4.  Defendant is aged 28.  He had criminal convictions since 1999.  For a very serious drug trafficking conviction, he was sentenced to prison for 12 years.  Counsel says defendant made good use of the time in prison and earned himself a degree, and after coming out of the prison, he also did voluntary work by helping in the rehabilitation of young offenders.  Defendant has been married.  He has a wife and a young son.  The wife has been suffering from depression.  Defendant is the main breadwinner of the family.  Counsel says defendant could not earn enough to support his family, so defendant resorted to committing the present offences.  Counsel says defendant is now very remorseful and he has been co-operating with the police.  He also frankly admits his guilt in court now.   

5.  It is confirmed that defendant’s last conviction in September 2010 was an offence of the same kind, also about forged credit cards. 

6.  Counsel says the cards in the present case were not workable and there was no loss of property.  He says defendant’s unlawful act was very unsophisticated.  He asks the court to be lenient towards the defendant.

7.  I do not agree that this is an unsophisticated crime committed by the defendant in the present case.  Defendant spent a total of $7,500 for the five forged credit cards.  He certainly thought and wished they could work in order to defraud.  Fortunately, the banks and the credit card companies have their own protection mechanism and, fortunately, all the payment requests in this case were duly rejected, so the victim did not lose the bracelet.

8.  Defence counsel draws my attention to CACC115 of 1996, saying that the present case is only a small-scale operation.  I agree with him in the light of the number of the cards involved.  There were only five in the present case.  There is no evidence that the defendant collaborated with others except that he got the cards for payment from one he called Ah Kwan.  Counsel compares the present case to the scenario in HCMA223 of 2009 where the High Court judge finally imposed a sentence of only 20 months on the defendant there.  Very often, the sentences imposed in magistracy or in magistracy appeals are lower.

9.  In my opinion, the present case is more comparable to that of CACC55 of 2000, HKSAR v Poon Cho Shu.  There, the defendant used three forged credit cards to purchase or attempt to purchase from different shops.  Goods and services to the value of 10,000 to 11,000 were obtained.  He was also in possession of one other forged credit card.  He was thus charged with three counts of using a false instrument, one count of attempt to use a false instrument and one count of possessing a false instrument.  He got 2 years’ imprisonment in total after plea.

10.  Of course, in that case, there was a loss of property between the value of $10,000 to $11,000, and that defendant committed the offences with others.  Yet, in the present case, defendant had a recent similar conviction.  As the Court of Appeal rightly pointed out, credit card frauds are serious offences and are prevailing in Hong Kong.  So any sentence imposed must be due and deterrent.

11.  Despite counsel’s mitigation, I still think in the present case 2 years’ imprisonment should be the right sentence for each of Charges 1 to 4.  That means I adopt 3 years’ imprisonment as the starting point for each of these four charges, and I give defendant one-third discount for his plea of guilty.  And given the nature of these four charges and their proximity, I order all the four terms of sentences to run concurrently.  That means defendant has to go to prison for a total of 2 years.