HKSAR v. CHAN CHUN

DCCC469/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 469 OF 2009

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Reasons for Sentence

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1.  The defendant Chan Chun appears before me and pleaded guilty to one charge of using a false instrument, Charge 1 and one of possessing false instruments, Charge 2.

2.  Both offences took place on 11 April 2009.  Charge 1 involved one GM master card in the name of Chan Chi-leung.  The defendant used the card which he knew was false at a Prada shop located at the Peninsular Hotel, Tsim Sha Tsui.  For Charge 2 the defendant had in his possession three forged credit cards, namely GM MasterCard in the name of Chan Chi-leung, one HBC MasterCard in the name of Chan Chi-leung and one Capital One Platinum MasterCard in the name of Chan Chun which he knew were false.

3.  The GM MasterCard in the name in Chan Chi-leung referred to in the 2nd Charge was also the one referred to in the 1st Charge. 

4.  The facts as admitted by the defendant revealed that that at the material time PW1, a staff of Prada located at the Peninsular Hotel received the defendant at the shop.  The defendant produced one GM MasterCard in the name of Chan Chi-leung, Exhibit E1, the credit card referred to in Charge 1, for settling the payment of a wallet valued at HK$3,500.  PW1 swiped P1 with the card machine but there was no response.  PW1 recorded the card number, card holder’s name and approval code shown on E1 and called the credit card centre for approval.  As PW1 suspected that E1 might be forged, she made a report to the police. 

5.  As a result plain clothes police officers, PW2 and PW3 arrived at Prada and kept the defendant who was still in Prada under observation.  Subsequently the defendant asked PW1 to return E1 to him and said that he would withdraw cash from an ATM machine for payment.  PW1 returned E1 to the defendant and the defendant left the shop. 

6.  PW2 followed the defendant out of Prada while PW3 stayed in Prada.  Subsequently PW3 notified PW2 that the card centre had confirmed that E1 was forged.  As a result PW2 intercepted the defendant and revealed his police identity.  He conducted body search on the defendant and found the following items in the wallet in the right pocket of the defendant’s trousers.  E1, one HBC MasterCard in the name of Chan Chi-leung, E2, and one Capital One Platinum MasterCard in the name of Chan Chun, E3.  E3 card formed the subject matter of the 2nd Charge.

7.  PW2 arrested the defendant for the offence of using a false instrument, i.e., the 1st Charge.  At the scene the defendant admitted under caution that his girlfriend was pregnant and therefore he was in need of money.  His friend Ah Lik gave E1 to E3 which were forged credit cards to the defendant and the defendant had only used E1 but he had not used E2 and E3.  PW2 also arrested the defendant for the offence of possessing false instrument, the 2nd Charge.

8.  The defendant admitted under caution at the scene that he requested Ah Lik to give him only one forged credit card but Ah Lik gave him E1 to E3 and told him to keep E1 and E2 for him first and the defendant had mistakenly used E1 which was not in his own name in Prada.

9.  Subsequently the defendant was interviewed by the police.  In relation to the 1st Charge the defendant admitted further that he did not know the person stated on the E1, i.e., Chan Chi-leung.  He would pay $2,000 to Ah Lik for each forged credit card after he had successfully used them and he had only used E1 once in attempting to purchase a wallet in Prada.

10.  In relation to the 2nd Charge, the defendant further admitted that he ordered one forged credit card in his own name from Ah Lik, when the defendant fetched E3 from Ah Lik at 2 pm in Tsim Sha Tsui, Ah Lik had also given him two credit cards in another person name, E1 and E2 and Ah Lik told the defendant to keep E1 and E2 for him and someone would fetch E1 and E2 from him after an hour.

11.  The three credit cards were sent to the government laboratory for examination.  The Government Forensic Scientist opined that E1 to E3 were false.  At all material times the defendant possessed E1 to E3 with the intention that he or another would use them to induce somebody to accept them as genuine.

12.  The defendant is not a man of clear record.  He has a total of 21 previous convictions recorded against him with one similar conviction which took place in 2003 for which he was sentenced to 10 months’ imprisonment. 

13.  The antecedent statement of the defendant states that he is now 34 years old.  He was born in Indonesia in 1975 and he came to Hong Kong in 1976.  He had received education up to Form 5.  The defendant is single and he lives with his mother and his elder sister in a Public Housing unit in Sham Shui Po.

14.  Mr Kwong in mitigation submits that the defendant is now 34 years old.  He is supporting his mother who is now 65 years old.  The defendant, before his incarceration was living with his girlfriend who is now 7 months’ pregnant.  The girlfriend of the defendant has written a letter in which she tells me that the defendant now regrets that he had done something wrong and he asks for leniency.  Mr Kwong submits that the defendant is aware of the serious nature of the offences. 

15.  Mr Kwong submits the only mitigating factor in this case is the guilty pleas of the defendant.  The defendant has worked as a transportation worker and hawker in the past but the earnings were insufficient to support his family.  As the defendant was under financial pressure he committed the offences.

16.  The Court of Appeal in HKSAR v Cheung Ka-wah, 2002 Vol.2, HKC at page 517 points out that:

“It is well known that in this jurisdiction severe sentences are given to those who commit offences of this kind which we are present concerned as a deterrent to others who are like minded.  One justification 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 more than commercial life is necessarily eroded by people who attempt to beat the system by fraudulent methods.”

17.  Although the defendant, in the present case, only attempted to buy goods to the value of $3,500 the defendant had a total of three forged credit cards in his possession. The potential loss to the victims in this case was substantial given the number of the forged credit cards. 

18.  All the matters pointed out by Mr Kwong for the defendant, for example, the financial pressure suffered by the defendant that the girlfriend of the defendant is now pregnant, whether taken individually or as a whole, do no amount to mitigating factors.  The only effective mitigating factor as considered by Mr Kwong is the guilty plea of the defendant.  In fact the defendant is not a man of clear record, he has an appalling record of having 21 previous convictions with one similar to the present offences.

19.  The defendant’s girlfriend told me in her letter that the defendant is now remorseful for what he had done but the defendant should have known better the seriousness of the offences that he committed.  He had been sent to prison for a similar offence in year 2005.  As said, the financial pressure suffered by the defendant and the pregnancy of the girlfriend, whether taken collectively or individually do not amount to mitigating factors. 

20.  For Charge 1 on the facts before me, the appropriate starting point after trial is 18 months’ imprisonment.  Given the guilty plea of the defendant, the defendant is entitled to one-third reduction which would bring the starting point down to 12 months’ imprisonment.  For the reasons given for Charge 1 I sentence the defendant to 12 months’ imprisonment.

21.  Apart from the card that the defendant had attempted to use at Prada, the defendant had in his possession two other forged credit cards.  For Charge 2, considering the number of forged credit cards that were found in the defendant’s possession the role played by the defendant that he was using one of the three forged credit cards and for the other two the defendant was keeping them for collection by other people, and at the end of the day, no doubt these credit cards would be used by others, and, as said, given the number of the forged credit cards involved the potential loss caused would be substantial. 

22.  For Charge 2, on the facts before me I take 3 years’ imprisonment as a starting point.  The defendant is entitled to one-third reduction for his guilty plea.  For the reasons given for Charge 2 I sentence the defendant to 2 years’ imprisonment. I have considered the totality principle.  In my judgment a partially consecutive term is called for in the present case. 

23.  The two offences overlap to a small extent in the sense that for the three forged credit cards referred to in Charge 2, one of them in fact was the credit card used by the defendant at Prada.  In my judgment a total term of 2 years and 6 months accurately reflect the overall culpability of the defendant.  To achieve this end I order 6 months of Charge 1 to run consecutively to the sentence of Charge 2, hence, a total sentence of 2 years and 6 months.