HKSAR v. HAU KA KIT

CACC 390/2005

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 390 OF 2005

(On Appeal From District Court Criminal Case No. 82 of 2005)

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving the reasons for judgment of the court) :

The conviction and sentence

1. The applicant was convicted after trial by Deputy District Judge Mary Wu on 27 August 2005 of the following charges :

1) five charges of using a false instrument (charges 1, 2, 4, 5 and 7), contrary to section 73 of the Crimes Ordinance,Cap. 200;

2) two charges of possession of a false instrument (charges 3 and 8), contrary to section 75(1) of the Crimes Ordinance;

3) one charge of resisting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences against the Person Ordinance, Cap. 212.

2. He was sentenced to a total of 4 years and 3 months’ imprisonment. 

The applications

3. The applicant applied for leave to appeal against sentence.  A single judge of the Court of Appeal had previously refused his application.  He had also applied for leave to appeal against conviction out of time but abandoned this application at the hearing.  We dismissed his application on sentence.  We now give our reasons.

Summary of the charges

4. The false instruments referred to in the charges were forged credit cards.  All the cards bore the name of the applicant.  The following is a summary of the various charges :

Charge 1

On 13 October 2003, he used a forged Wing Hang Bank Visa C ard (‘Wing Hang Card’) to buy dry seafood valued at HK$1,080 from Yue Hwa Chinese Products Emporium Limited (‘Yue Hwa’);

Charge 2

On 13 October 2003, he used the same card to buy a mobile phone valued at $2,780 from Goleasy Limited ;

Charge 3

On 13 October 2003, he possessed a forged American International Group Visa Card (‘AIG Card’);

Charge 4

On 17 November 2003, he used a forged Wing Hang Bank Gold Visa Card (‘Wing Hang Gold Card’) to buy a gold bracelet valued at HK$2,700;

Charge 5

On 19 November 2003 he used a forged HSBC Master Card to buy a Tudor watch valued at HK$9,758 from Chow Tai Fook Jewellery Company Limited (‘Chow Tai Fook’);

Charge 6

On 19 November 2003, he r esist ed a police officer in the due execution of his duty outside Chow Tai Fook;

Charge 7

On 25 November 2003, he used a forged HSBC iCAN Visa Card (‘iCAN Card’) to buy things valued at HK$695 from the Economic Pets Accessories (‘the Pet Shop’); 

Charge 8

On 25 November 2003, he possessed a forged Dao Heng Bank Cable Power Gold Visa Card (‘Dao Heng Card’).

The events

5. The prosecution’s evidence against the applicant began on 13 October 2003 at 4 p.m. when he used the Wing Hang Card to buy a mobile phone (Charge 2).  However, before the transaction could be completed, the applicant asked for the return of the card and left the shop.  The applicant had been observed by police officers before he entered Goleasy .  After he left the shop one of the police officers went into the shop to make enquiry while the other police officer followed the applicant.  As soon as the officer who went into the shop learnt from the shopkeeper what had happened, he immediately joined his colleague who was following the applicant and they later intercepted him.  He was found to possess the Wing Hang Card and the AIG Card (Charge 3). 

6. Under caution he told the police officers that he had used the Wing Hang Card to buy dry seafood at Yue Hwa Emporium (Charge 1) and that he had also intended to use the card to buy the mobile phone.  The applicant further told the police that he had not used the AIG Card.  After the arrest, the applicant was released on bail.

7. The next event that occurred was on 19 November 2003 when the defendant used a HSBC Master Card to buy the Tudor watch from Chow Tai Fook (Charge 5).  The salesperson PW5 conducted a check at the card center which confirmed the card was forged.  A report was made to the police secretly.  After the police officers arrived the salespersons PW4, PW5 and PW6 identified the applicant to be the person who used the card.  When the officer tried to arrest the applicant he pushed him away and fled.  The uniformed officer gave chase and he was eventually subdued after a struggle (Charge 6). 

8. On 20 November 2003 he made an admission under caution that he bought the HSBC Master Card at HK$2,500 from a disco in Mongkok.  He knew the card was forged and he had used it.  The applicant was released on police bail.

9. Notwithstanding the arrest for previous offences the applicant on 25 November 2003 went to the Pet Shop and used the iCAN Card to buy various things.  The salesperson PW7 suspected that the card was forged because the laser logo appeared to be suspicious.  Enquiry was made with the card center and it was confirmed that the card was forged.  A report was made to the police.  The police arrived and arrested the applicant (Charge 7). 

10. The applicant admitted under caution that it was his first time to be a ‘driver’ and asked for a chance.  Another forged card namely, the Dao Heng Card was found on the applicant (Charge 8).

11. On 17 November 2003 a man went to the Truly Treasury Gold and Jewellery Shop (‘Truly Treasury’) to buy a gold bracelet at HK$2,700 with a forged Wing Hang Bank Gold Visa Card.  The purchase was successful and an approval code was obtained from the card center.  However, the salesperson PW3 was suspicious of the furtive manner of the customer and he caused a further check with the card center.  It was then discovered that the card was issued by a foreign bank instead of Wing Hang Bank.  PW3 asked the man to show his Hong Kong identity card.  The man produced his identity card but before PW3 could record the particulars the man snatched his card back and fled.  The card was left behind in the shop.  It was the Wing Hang Gold Card of the 4th Charge.  It had the name of the applicant on it. 

12. On 26 November 2003 the applicant admitted under caution that he bought the Wing Hang Gold Card for HK$2,500 from a person called ‘Luen Mo’.  He admitted that he used the card to buy the bracelet from the jewellery shop.  He further admitted that he snatched his identity card back when he realised the staff knew that the credit card was a forged card.

Application on sentence

13. In respect of his application for leave to appeal against sentence, the judge imposed a total sentence of 4 years and 3 months’ imprisonment.  In respect of the charges relating to the credit cards the judge used a sentence of 4 years imprisonment for each of the charges and ordered them to be served concurrently.  In respect of the resisting arrest charge the judge imposed a sentence of 3 months’ imprisonment to run consecutively to the other charges. 

14. The aggravating feature of this case is that the applicant had used forged credit cards on five occasions within a short period of one and half months.  In addition, he committed two further sets of offences after he was put on police bail.  The last two offences occurred while he was on the second police bail. 

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.  In our view the 4-year imprisonment adopted by the judge in respect of each of the credit card charges is appropriate.

16. The total sentence of 4 years and 3 months’ imprisonment is appropriate.  We have considered whether we should disallow time under section 83W of the Criminal Procedure Ordinance because of the unmeritorious nature of the application.  However we decided not to do so in view of the relative young age of the applicant—he was not yet 21 years of age at the time when he committed the offences.

17. Accordingly, we dismissed the applicant’s application for leave to appeal against sentence.