HKSAR v. CHAN KWOK KEUNG

DCCC1133/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1133 OF 2011

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Reasons for Sentence

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1.  The defendant pleaded guilty to seven charges. They are the 1st, 2nd, 3rd, 7th, 9th, 10th and 11th. He pleaded not guilty to the 4th, 5th, 6th, 8th and 12th charges. They are now left on the court’s file. This Court orders that these charges are not to be proceeded with without the leave of the court.

The facts of the case

2.  The defendant had used four different counterfeit American Express credit cards, all in his own name, to buy different items from several shops. 

3.  I summarise all the particulars of each charge in the following table:-

Charge(s)	Date	Counter field Credit cards	Victim(s)	Volume of the purchase	Purchase
1	12 May 2011	Card 1	Dah Cheong Hong	$9,124.00	Dried Seafood
2	14 May 2011	Card 2	Dah Cheong Hong	$9,868.10	Dried Seafood
3	14 May 2011	Card 2	Jusco	$5,153.00	Cognac
7	30 May 2011	Card 3	Jusco	$61,820.00	Diamond
9	30 May 2011	Card 4	ParknShop	$93.20	Shower gel
10	30 May 2011	Card 4	CR Care Company	$15,100.00	Bird’s nest
11	30 May 2011	Card 4 and 5
Total amount				$101,158.30

4.  The first six charges are offences of using a false credit card, contrary to section 73 of the Crimes Ordinance, Cap.200.  Charge 11 is possessing a false instrument, contrary to section 75(1) of the Crimes Ordinance, Cap 200.

5.  The facts of the case also showed that the CCTV in both Jusco and ParknShop captured the images of the defendant at the cashier counter.  When the defendant left ParknShop, he went to Jusco and he wanted to buy three digital cameras and that alerted the security guard of Jusco who then called the police.

6.  The defendant left Jusco and went to CR Care Company to commit the offence of Charge 10.  When he came out from CR Care Company, he was intercepted by the police.  He was found in possession of card 4 and card 5. 

7.  Under caution the defendant admitted that card 4 and 5 were obtained from his friend in Shenzhen.  He would receive 10% of each successful purchase.  He committed the present offence because he was in need of money. 

Criminal record

8.  The defendant had 19 previous convictions betweens 1976 to 2002; 9 convictions were related to dishonesty, none were similar.

Mitigation

9.  The defendant is 52 year old, he has two children, a son from his previous relationship but he had lost contact with him. His daughter from the second marriage is now studying Form 4.   The defendant was formally a casual transportation worker and earned about $10,000 to $20,000 per month, his wife earned about $9,000 per month. 

10.  From the hospital document before me I learned that the defendant’s wife was admitted into hospital for an operation on 17 May 2011 which cost about $15,000.  The defence said that the defendant had stayed clean since 2002.  It was due to financial pressure that he committed the present offences as he needed money to pay for the surgical fee of his wife.  

11.  The defendant in his letter said that he is now very regretful and remorseful for what he had done.  He wished to turn over a new leaf after his discharge from the prison. 

12.  The defence has provided me with a number of authorities and one of those was the leading authority of credit card fraud case, Chan Sui To [1996] 2 HKCLR 128.  At page 131, the court had listed out the factors to be taken into account when determining the seriousness of this type of offence.  They are:

(i) the size of the operation; whether it involved large sums of money; whether it concerned a large number of persons or forged credit cards;

(ii) the planning that has gone into perpetrating the fraud; whether it is elaborate or simple; whether technical skills were used and to what extent;

(iii) whether there is an international dimension;

(iv) whether the accused played a major role, such as running a syndicate, engaging in actual manufacture, organising the used of forged cards or whether he is a mere cog in the wheel as a courier or a custodian or keeper; and

(v) whether there is a plea of guilty.

13.  In the present case, the defendant obtained the counterfeit credit cards in Shenzhen and brought them to Hong Kong to make purchases.  All the five counterfeits credit cards were in his own name and that made him easy to make use of the counterfeits cards if the shops demand the proof of the card user.   

14.  From the Summary of Facts, one can tell that when the defendant had successfully made the purchases from the store, he returned back to the store to make a second purchase because he was confident that he could use the forged credit cards in these shops again, such as Tai Cheong Hong and Jusco.

15.  There is no doubt that the defendant played an active role in this illegal activities.  On six different occasions he used four different cards to make purchases; the total amount was $101,158.30 over a period of 18 days.  Had he not been caught by the police, the proper inference was that he would continue to use the fifth card to make further purchases.  He was more than a cog in the wheel as suggested by the defence. 

16.  In determining the sentence, I have regard to a number of cases:

(1) HKSAR v Poon Cho Chu CACC55/2000. The applicant pleaded guilty to:

(i) Three charges of using false instrument.

(ii) One charge of attempt to use a false instrument.

(iii) One charge of possession of a false instrument.

(iv) One charge of possession of ID card relating to another.

The amount involved was about $10,000 to $11,000.

17.  The court considered that 3 years starting point was appropriate for the false instrument charges and ordered the sentences relating to all false instrument charges to run concurrently. 

18.  In HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517, the applicant was sentenced to a concurrent term of 2 years’ imprisonment to three charges of using a false instrument and the value was less than $9,000.

19.  In HKSAR v Tu I Lang CACC464/2007, the applicant pleaded guilty to one charge of using forged credit card and one charge of possession two forged credit cards.  In this judgment, the Court of Appeal 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.”

20.  In HKSAR v Hau Ka Kit CACC390/2005, the applicant was convicted after trial for five charges of using a false instrument and two charges of possession of a false instrument and one charge of resisting a police officer.  At paragraph 15 of that case, the Court of Appeal said that:

“This court has repeatedly stated that credit card system is an important financial structure in Hong Kong. Those who undermine the reputation or the operation of this structure would be expected to receive a deterrent sentence for their criminal activities. In our view, the 4 years’ imprisonment adopted by the judge in respect of each of the credit card charges is appropriate.”

21.  As the Court of Appeal in HKSAR v Kita Yasushi CACC470/2006 said that the appropriate individual starting point for each of the charges which properly reflect its criminality was called for. 

22.  To this extent, I adopt a starting point of 3 years for each charge and reduce it to 2 years because of the defendant’s guilty plea, except Charge 7, of which the amount was $61,820, the starting point is 4 years reduced to 2 years 8 months.

23.  I also order Charge 2, Charge 3, Charge 7 and Charge 9, 3 months consecutive to Charge 1.  As to Charges 10 and 11, they are ordered to run concurrently, 3 months out of which are run consecutively to Charge 1, and the total sentence arrives at 3 years and 3 months.

(Clarification of sentence between Court and counsel)

24.  (1) Charge 1: 3 months consecutive to Charge 7;

(2) Charge 2: 3 months consecutive to Charge 7;

(3) Charge 3: 3 months consecutive to Charge 7;

(4) Charge 9: 3 months consecutive to Charge 7;

(5) Charge 10 and 11to be run concurrently, and out of this concurrent sentence 3 months consecutive to Charge 7.

25.  The total sentence is 3 years and 11 months.