HKSAR v. LAM CHI FUNG

DCCC 336/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 336 OF 2012

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BETWEEN

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Reasons for Sentence

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Introduction

1.  The defendant is convicted on his own plea of:

(i) the 1^st and 2^nd Charges of using a false instrument, contrary to section 73 of the Crimes Ordinance; and

(ii) the 3^rd Charge of possessing false instruments, contrary to section 75(1) of the Crimes Ordinance.

Facts

2.  At about 1:31 pm on 13 February 2012, the defendant used a Cathay Pacific American Express card in the name of LAM CHI FUNG (“Card 1”) to purchase a box of chocolate from Tam Kam Fung of “ROYCE” at city’super, B2 Floor, Times Square, Causeway Bay, Hong Kong. The price of that box of chocolate was HK$730.

3.  At about 1:45 pm on the same day, the defendant used Card 1 to purchase one iPad, one iPhone and two phone covers totally worth HK$9,576 from LO Paul of “DG Lifestyle Store” at Shop 903, 9^th Floor, Times Square.

4.  PC 2111 intercepted the defendant on the 5^th Floor of Times Square soon afterwards. Upon search, PC 2111 found inter alia Card 1 and one American Express card in the name of LAM CHI FUNG (“Card 2”) in the defendant’s wallet.

5.  American Express confirmed that the card numbers on Card 1 and Card 2 were issued to two persons in the USA, not to the defendant. PC 2111 therefore arrested the defendant.

6.  Card 1 and Card 2 are forged credit cards.

The defendant’s previous conviction record and antecedents

7.  The defendant has two previous convictions – one being robbery sentenced in November 2002, and the other being trafficking in dangerous drugs sentenced in June 2008. He was last discharged from prison in September 2010.

8.  The defendant was born in Hong Kong in March 1987. He is now 25 years old. He has received education up to Form 3 level. He has worked as a meat delivery worker, toy sales and property agent. He is single and used to live with his parents.

Mitigation

9.  In mitigation, Mr Lee submitted inter alia that:

(i) The defendant bought the subject two forged credit cards at RMB1,000 each from a person in Shenzhen; and

(ii) The defendant’s girlfriend was pregnant and the defendant needed money to support his pregnant girlfriend, hence the commission of the present offences.

A letter written by the defendant was submitted asking for the court’s leniency. A letter dated 25 November 2005 from the police was also submitted to this court saying that the defendant had assisted the police in making a report of theft and it resulted in the thief being convicted. As the letter from the police was dated November 2005, Mr Lee agreed with my observation that the letter must have been used in mitigation in DCCC 1206/2007 and credit must have been given by the court to the defendant when the defendant was sentenced in June 2008. As such, I do not think any further credit should be given to the defendant for his assistance to the police in November 2005.

Sentencing authorities

10.  In R v Chan Sui To and another [1996] 2 HKCLR 128, the Court of Appeal has given guidance as to the factors to be taken into account when determining the seriousness of an offence of this type. They are:

“1. The size of the operation e.g. whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards.

2. The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent.

3. Whether there is an international dimension.

4. Whether the accused played a major role, e.g. running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he is a mere "cog in the wheel" as a courier or a custodian or keeper.

5. Whether there is a plea of guilty.”

11.  In HKSAR v Cheung Ka-wo Johnny CACC 136/2001, the Court of Appeal said:

“11. It is well known that in this jurisdiction severe sentences are given to those who commit offences of the kind with which we are presently concerned as a deterrent to others who are like-minded. One justification for this is that the integrity of the credit card system is highly important in this day and age and the confidence which people … are entitled to place on this aspect of modern commercial life is necessarily eroded by others who attempt to beat the system by fraudulent methods.”

12.  In HKSAR v Hau Ka Kit CACC 390/2005, the Court of Appeal also said:

“15. This court has repeatedly stated that the credit card system is an important financial structure in Hong Kong. Those who undermine the reputation or the operation of this structure will be expected to receive a deterrent sentence for their criminal activity.”

13.  In HKSAR v Tu I Lang CACC 464/2006, the Court of Appeal considered R v Chan Sui To and another [1996] 2 HKCLR 128, HKSAR v Watt Siu Hung CACC 93/2001, HKSAR v Cheung Ka Wo Johnny CACC 136/2001 and HKSAR v Lau Pui Hang CACC 393/2003, and said 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. In Tu I Lang, the applicant pleaded guilty to an offence of using a forged credit card (to purchase a mobile phone) and an offence of possessing two forged credit cards. The Court of Appeal considered that the appropriate starting point of sentence for each offence was three years’ imprisonment.

14.  In HKSAR v Luo Xiuhong CACC 339/2010, the applicant pleaded guilty to one charge of conspiracy to obtain property by deception and one charge of possession of a forged travel document. The applicant agreed to use a forged Singaporean passport and credit cards, which would be supplied by X, to come to Hong Kong and make purchases, in return for 30% of the price of the goods bought. The applicant made two successful purchases of goods valued at over $8,000. In determining the appropriate starting point for sentence for the conspiracy charge, the sentencing judge stated inter alia that but for the cross-border element, a starting point of 3 years would have been appropriate. However, as a result of the cross-border element, the sentencing judge adopted a starting point of 4 years. On appeal against sentence, the Court of Appeal considered the enhancement of the starting point from 3 to 4 years on the basis of the international dimension for the conspiracy charge was too high, and said that the proper starting point was 3½ years.

Sentence

15.  The present case is a relatively minor credit card fraud case involving purchases of goods totally worth HK$10,306 and possession of one other forged credit card. There is no evidence of any elaborate planning behind the offences either. However, the fact that the defendant bought the two forged credit cards from Shenzhen and that the true card holders of  Card 1 and Card 2 are two persons in the USA render this case carry the flavor of international dimension.

16.  In light of the sentencing authorities I mentioned, in particular Luo Xiuhong, I adopt a starting point of 39 months’ imprisonment for each of the charges.

17.  I give the defendant one-third discount for his guilty plea thus reducing the sentence to 26 months’ imprisonment for each charge. Apart from the defendant’s guilty plea, I do not consider there being any other valid mitigating features justifying further reduction in sentence. In particular, I do not consider the defendant’s financial difficulty or his girlfriend’s pregnancy valid mitigating features.  

18.  On totality, I order the sentences for all three charges to run concurrently, thus making a total of 26 months’ imprisonment.