HKSAR v. LAU CHAK LAM, ANDY

DCCC1078/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1078 OF 2008

----------------------

----------------------

Reasons for Sentence

1.  The 1st defendant pleaded guilty to a charge of using a false instrument, namely, a forged credit card, and he has also pleaded guilty to being in possession of two forged credit cards.

2.  The 2nd defendant has pleaded guilty to one charge, namely, the possession of two credit cards, the forged credit cards.

3.  The Summary of Facts disclosed that, at about 4.25 on the afternoon of 14 October 2008, police officers were conducting an anti-crime patrol in Whampoa when they saw the two defendants talking to each other and the officers formed the view that they were acting suspiciously.  The defendants then went in separate directions and the officers followed them separately.

4.  The 1st defendant was seen to enter an optical shop where he selected two pairs of glasses valued at just under $5,000 and presented a forged Master card to pay for the glasses.  The sales assistant used the credit card, and payment was authorised.  And the defendant left the shop with the two pairs of glasses.

5.  And the 1st defendant was later intercepted by police officers and found in possession of the two pairs of glasses and the sales receipt from the shop.  And in his wallet, he found two forged credit cards both in the name of Lau Chak-lam, Andy.  The police officer noticed that the words on the back of the Citi Business card were printed upside down and there was no issuing date on the HBC card.

6.  When cautioned, the 1st defendant said that he committed the offence because he has got insufficient income and he borrowed $30,000 from a person he referred to as Uncle Wai, whom he had met in a gaming centre.  He told the police that he was unable to repay Uncle Wai and he made two false credit cards for him.  He met him earlier that day, gave them to him and told him to make purchases with the cards.  The scheme was that Uncle Wai would resell the items and the defendant would receive 10 per cent of the proceeds.

7.  According to the 1st defendant, he was taken to Whampoa in a taxi by Uncle Wai and told that he would be followed and watched.  He used the City business cards to purchase the pair of sunglasses.  He never used the second card, the HBC card.

8.  The 2nd defendant was intercepted just outside a shop in the basement of Whampoa Gardens.  He was found in possession of an HSBC Master card and also an HBC Master card in the name of Yu Tin-sun.  The officers noted that the prints on both cards were vague.  The defendant admitted that the cards were forged.

9.  He gave a very similar story to the 1st defendant as to how he came into possession of the cards.  He met a person called Wai in a game centre he owed $5,000 but had no money to repay the debt, and Wai told him he could buy two false credit cards and use them to earn some cash to repay the debt.

10.    Wai made the two false credit cards for him and told him to use them in Whampoa.  Goods purchased with the credit card were to be given to Wai who would resell them and give D2 10 per cent of the proceeds.  He was arrested before he could use the cards, and he said he had no accomplice.  All four cards were examined and found to be false credit cards.

11.  Both defendants have a number of previous convictions.  D1 has previous convictions for theft, burglary and for trafficking in dangerous drugs.  In 2005, he was sent to prison for three years for an offence of burglary.  The 2nd defendant has got seven previous matters recorded on his record.  None of them are for offences of dishonesty.  The majority of the offences are drug related.  And he was last convicted in July 2005, and for trafficking in dangerous drugs, he was sentenced to serve a period in a drug addiction treatment centre.

12.  In mitigation, I was told by the 1st defendant’s counsel that, although he has a record, the record is dissimilar.  I was given four letters for consideration.

13.  The first letter was from a Catholic priest, a Reverend Anaya.  He came to know the defendant on his visits to Lai Chi Kok.  The defendant impressed Reverend Anaya as being not a person with wrong principles.  He only met him previously in jail and was surprised to see him back in jail again.  He said the defendant deeply regrets the association which led to these problems, and he was worried about his family situation.

14.  The second letter produced to the court was from the defendant’s girlfriend.  She speaks of the care that he has taken of his uncle and parents and that he was assisting with the payment of his younger brother’s debts.  And she said that he deeply regrets his involvement in these offences.

15.  The third letter is a letter from a previous employer of the defendant who is a director of Centaline Property Agency Limited.  The defendant had previously worked as an estate agent in 2002, and describes the defendant as being hardworking, progressive and willing to help others, and he said he would give him a job when he is eventually released.

16.  The final letter is from the mother of the defendant.  She describes the defendant as being a very supportive son and that the family deeply is in need of the financial assistance he brings to them.  She said her husband is ill and the defendant has assisted with looking after the husband.

17.  Finally, there was a letter produced from the defendant himself saying that he committed the offence because of financial problems.  He borrowed the money from friends and was forced to repay them.  He points to a number of mitigating features of the case:  pleaded guilty at the earliest opportunity, has no similar record and the amount involved was not considerable.  He said he is willing to make restitution, needs to care for his elderly parents and wants a chance to correct himself.  He said he is deeply remorseful for what he did.

18.  The 2nd defendant, I am told, is 35 years of age.  He formerly worked as an electrical technician but has been unemployed since June of last year.  He has a 72 year-old father who is unemployed, and his mother who is 65 works as a cleaning worker.  He studied up to Form 4 standard.  I was told by his counsel that, since his release from the drug addiction treatment centre in 2005, he is no longer drug addicted.  He used to contribute regularly to the upkeep of his family but because of his unemployment, he was unable to keep those payments up.

19.  In relation to the 2nd defendant two letters were placed before the court, one from his mother and one from the defendant himself.  His mother points out that the defendant always paid his maintenance punctually, that she visited him regularly at Lai Chi Kok and has witnessed the sincere remorse shown by the defendant who requests leniency and a last chance.

20.  In his own letter, the 2nd defendant points out that he is owed three months’ salary by a contractor and he had been unemployed for four months and could not find any work.  He said he was used by persons to commit the offence and did not realise how serious the offence was.

21.  I have been referred to certain cases and, in particular, the case of HKSAR v Tu I Lang CACC464/2006.  In paragraph 10 of that case, the court points out 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, then a starting point of three years’ imprisonment or less would be appropriate.”

22.  In his mitigation, the counsel for the 1st defendant said his instructions were that D1 did not know D2.  However, having considered the facts, they were seen talking together before the 1st defendant’s use of the forged credit card and they were both behaving furtively.  They both say they obtained the cards from a man called Wai, whom they owed money, and their explanations as to the arrangements were very similar.

23.  I have also observed the cards themselves.  The common characteristics are such that they could not be explained by coincidence.  I was sure they were acting in concert.  But I accept that this was a small unsophisticated operation within the meaning of the case of Tu I Lang.  Neither defendant has the advantage of a clear record, but I note that in relation to D2, he has no previous convictions of any offences of dishonesty.

24.  Having considered all the features of the case, it seems to me that an appropriate starting point in respect of each offence is one of three years’ imprisonment.  Having considered all the circumstances, I do not think it is appropriate to make any differentiation in the degree of criminality between the two defendants.  I take the view that a sentence of three years is appropriate as a starting point on each offence and that a discount of one-third should be allowed in respect of the guilty pleas offered by the defendants.

25.  In respect of the 1st defendant, therefore, I order that, in respect of Charges 1 and 2, he serve a sentence of two years’ imprisonment.  The sentence is to run concurrently.

26.  In respect of the 2nd defendant, on Charge 3, I order that he also go to prison for two years.