HKSAR v. LUI TAK SHING

DCCC428/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 428 OF 2010

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Reasons for Sentence

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1.  On 27 May 2010, the defendant pleaded guilty before me to the following seven charges: 1st, 3rd, 4th and 6th charges, using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap. 200; 2nd, 5th and 7th charges, possessing a false instrument, contrary to section 75(1) of the Crimes Ordinance, Cap. 200. All the charges related to forged credit cards and a total of six cards were involved.

2.  The summary of facts which the defendant admitted revealed these; firstly, on 23 September 2009, the defendant used a forged Washington Mutual Visa Card bearing his name to make a purchase totalling HK$241.70 at a Mannings store in Mongkok. This is the subject matter of the 1st charge. After the said purchase, the CCTV camera of the store captured the defendant walking to a shelf and discarding something thereon. The forged Washington Mutual Visa Card which the defendant had used to make the purchase and another forged RBC Royal Bank Visa Card bearing the defendant’s name were later found on the shelf. A report was made to the police. The RBC card is the subject matter of the 2nd charge.

3.  Then on 21 February 2010, the defendant used another forged Washington Mutual Visa Card, which also bore his name to purchase two mobile phones with a total value of HK$5,180 from Citylink Electronics Limited in Mongkok. This is the subject matter of the 3rd charge.

4.  Later that same day, the defendant used the same forged Washington Mutual Visa Card which he used about an hour ago in Citylink, to purchase two iPod Touch at the Hong Kong Suning Citicall Appliance Limited in Mongkok. The total value of these two iPod Touch was HK$4,500. Since the salesperson found the defendant suspicious, he made a report to the police.

5.  Shortly afterwards, the police arrived and made enquiries with the defendant. He then admitted that the Washington Mutual Visa Card was forged. This is the subject matter of the 4th charge.

6.  During the enquiries, the defendant also took out from his wallet a GM Visa Card bearing his name. He told the police officer that the card was also forged. This is the subject matter of the 5th charge.

7.  Under caution, the defendant admitted that the two cards were given to him by “Ah Fai”. He had used the Washington Mutual Visa Card to buy two mobile phones. He then handed the phones to “Ah Fai” but “Ah Fai” did not give him the 10 per cent promised reward. Instead “Ah Fai” asked him to make similar purchases. The defendant said he therefore went to purchase the iPod Touch from Suning Citicall. After his arrest, the defendant was granted police bail.

8.  However, in the following evening, that is, on 22 February 2010, he used a forged NSGB Visa Card in the name of Wong Chi‑hung to purchase two mobile phones with a total value of HK$5,180 from Citylink. The salesperson felt suspicious and asked the defendant to produce his ID card. The defendant then immediately took away the NSGB card and left. This is the subject matter of the 6th charge.

9.  However, one or two minutes later, the defendant returned to the shop. He told the salesperson that the visa card did not belong to him and that he was buying the phones on behalf of Wong Chi-hung who gave him the card. Another male then went into the shop and claimed to be the owner of the NSGB card. The male asked the salesperson to use the card to settle the payment and he then left immediately.

10.  A report was made to the police and the defendant was stopped and searched. Upon search, a forged GM Visa Card, also in the name of Wong Chi-hung, was found in the defendant’s trousers pocket. This is the subject matter of the 7th charge.

11.  The defendant was arrested and he said under caution that the two forged cards in the name of Wong Chi-hung were given to him by “Siu Fu” for making purchases. He would be given a 10 per cent reward. The defendant said that he committed the offences because he had a huge debt.

12.  Following his arrest on this occasion, the defendant also admitted under caution that the Washington Mutual Visa Card and the RBC Card relating to the 1st and 2nd charges were provided to him by “Ah Man” who told him to make purchases with those cards. He had also been promised a 10 per cent reward. The defendant said that after he had made the purchase in the Mannings store, he, however, was afraid and he therefore dumped the two cards on the shelf.

13.  After convicting the defendant of these seven charges, I adjourned sentenced to today in order to have various reports obtained. These reports I now have. Briefly, the defendant is not considered suitable to be admitted to the Training Centre, Detention Centre or the Rehabilitation Centre as the medical officer is of the opinion that he is a drug-dependant.

14.  The defendant is now aged 19½. He quitted school after completing Form 1. He then worked as a delivery worker and a waiter. He became jobless in May 2009. In May 2007, he was put on probation for 12 months after being convicted of one “theft” charge and one “going equipped for stealing” charge.

15.  It was first revealed in the reports obtained that the defendant is a drug addict. The defendant admitted that he started taking ketamine in 2006. Upon the imposition of the Probation Order, he was sent to the St. Stephen’s Society where he received residential drug treatment for almost one year until 23 May 2008. However, soon after he was discharged from the St. Stephen’s Society the defendant relapsed into his drug‑taking habit. The defendant also told those who compiled the reports that in the past years, he had abused multiple drugs including ketamine, cannabis and cocaine with the frequency of taking ketamine five times a week and cannabis or cocaine once or twice a week. Before he was remanded for the present offences, he had to spend about HK$700 per day on drugs.

16.  After considering the reports obtained and all the relevant matters, I take the view that there is no other appropriate alternative to deal with the defendant other than by way of imprisonment.

17.  In mitigation, it was said on behalf of the defendant that he was merely used by others and that there was no evidence about a huge syndicate at work. It was further urged on his behalf that a lenient sentence be imposed in view of his pleas and remorse as well as the fact that the value of the goods involved was relatively small.

18.  Mr Wong, for the defendant, also referred this court to the case of HKSAR v Yau Hoi Shan, Shanly CACC209 of 2006, unreported, and urged that a starting point of 24 months be adopted. The first observation I make is that the facts in each case vary and therefore, a particular starting point adopted or a particular sentence passed in a given case cannot be of much use to the sentencing court. I also note that the Court of Appeal in the case of Yau Hoi Shan made the following comment:-

“We have examined many cases of small-scale credit card fraud.  It appears that the starting points for credit card offences adopted in those cases often exceeded the starting points adopted by the judge.”

19.  In the circumstances, I do not consider the 24 month starting point adopted in the case of Yau Hoi Shan to be of any assistance in sentencing this defendant.

20.  For offences involving forged credit cards, the Court of Appeal in R v Chan Sui To & Another [1996] 2 HKCLR 128 set out a number of factors which a sentencing judge would need to consider in determining the appropriate sentence. These include the size of the operation, the planning involved, whether there was an international dimension, the role played by the defendant, whether there was a guilty plea, etc. It was said that the sum of money involved is only one of the factors to be taken into account and it is not even the most significant factor.

21.  In HKSAR v Cheung Ka Wo, Johnny [2002] 2 HKC 517, the Court of Appeal further said that it was the potential for losses, rather than the actual loss, in relation to the fraudulent use of credit cards that was important in sentencing for this kind of offences.

22.  In the present case, a total of six forged credit cards were involved. The total value of the properties involved was about HK$15,000. The operation could be described as simple. Except on the occasion in respect of the 6th charge where another male appeared, what the defendant did was this: he armed himself with the forged cards, went to the shops and did the purchases. He said he then handed over the purchases to others and he had been promised a reward. However, I notice that the defendant’s name was printed on four of the six cards. The defendant said that these cards were given to him by someone else. Whoever that person was, the defendant must have given his name to that person and that person must have had the means to have the cards tailor-made for the defendant to use. Moreover, in respect of the 6th charge, the defendant was clearly not acting alone and another male did enter the shop to seek to assist the defendant to complete the purchase.

23.  I also note that within just a day’s time after he was released on police bail, the defendant was able to arm himself again with two other forged credit cards to commit the offences in charges 6 and 7.

24.  In sentencing, I bear in mind all the above and that the Court has repeatedly said that the integrity of the credit card system is highly important and must be protected and that severe sentences are called for as a deterrent. I also bear in mind the defendant’s background, his records, the contents of the reports and the mitigation put forth.

25.  For charge 1 to 5, I adopt a starting point of 3 years for each charge. A one-third reduction will be given to the defendant for his pleas. He is therefore to serve a term of 2 years, that is 24 months, for each of charges 1 to 5.

26.  For charges 6 to 7, there is an aggravating factor in that these offences were committed while the defendant was on bail. I therefore adopt a starting point of 3½ years for each charge. Again, the defendant will be given a one-third reduction for his pleas. He is to serve a term of 28 months for each of charges 6 and 7.

27.  Having considered the totality principle, I order that the sentences in respect of the first set of charges, that is charges 1 to 5, are to be served wholly concurrently. Similarly, the sentences in respect of the second set of charges, that is charges 6 and 7, are also to be served wholly concurrently. However, 8 months of the 28-month term in respect of this second set of charges are to be served consecutively to the sentences in respect of the first set of charges, making a total of 32 months’ imprisonment.