HKSAR v. LAU CHAK LAM, ANDY

DCCC 922/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 922 OF 2010

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Reasons for Sentence

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Introduction

1.  The Defendant is convicted upon his own guilty pleas on one charge of using a false instrument, contrary to section 73 of the Crimes Ordinance, and one charge of possessing a false instrument, contrary to section 75(1) of the Crimes Ordinance.

2.  The facts admitted by the Defendant reveal that:

(i) On 8 July 2010, the Defendant reserved two watches from “City Chain” shop at Shop No.60A, Ground Floor, Mirador Mansion, Nos.1A-9A Carnarvon Road, Tsim Sha Tsui (the “Shop”);

(ii) At about 7:30 pm on 10 July 2010, the Defendant returned to the Shop and purchased the two watches he reserved and a blue jersey totally valued at HK$5,028. He used a Citibank VISA Card numbered 4101-2000-4622-9718 in the name of CHAU KA KI (“Exhibit P1”) for payment and signed a credit card receipt (“Exhibit P3”). PW1 who was the staff of the Shop found Exhibit P1 suspicious and made a report to the police;

(iii) PW2, a police officer, arrived at the Shop at about 7:40 pm on the same day and made enquiries with the Defendant. Upon search, PW2 found from the Defendant Exhibit P1 and a Washington Mutual VISA card numbered 4104-2000-4633-3734 in the name of CHAU KA KI (“Exhibit P2”);

(iv) The Defendant was arrested. Under caution, the Defendant admitted, inter alia,that someone called “Ah B” gave him two false credit cards, i.e. Exhibits P1 and P2, and asked him to use the false credit cards to purchase watches, and that the Defendant would receive a reward at 10% of the value of the items he purchased; and

(v) Exhibits P1 and P2 were found to be forged.

Previous Conviction Records and Antecedents

3.  The Defendant has 7 previous convictions, the last two were the same as the present offences, i.e. using a false instrument and possessing a false instrument, sentenced in January 2009 for a total of 2 years’ imprisonment. I was informed that the Defendant had already served his sentence in relation to the previous convictions. The Defendant also has 2 previous convictions of theft and one previous conviction of burglary.

4.  The Defendant was born in September 1975 and is now 35 years old. He is single. Before his arrest, he used to live with his parents in a flat at a public housing estate in Shek Kip Mei.

5.  Public Prosecutor Mr. Alvin Chui also submitted a Court of Appeal judgment HKSAR v Tu I Lang CACC 464/2006 for my reference.

Mitigation

6.  Defence counsel Mr. Michael Cheung agreed that a starting point of 3 years’ imprisonment adopted in HKSAR v Tu I Lang was appropriate in the present case. Mr. Cheung also asked this Court to impose a sentence as lenient as possible.

Sentencing authorities

7.  In R v Chan Sui-to and another CACC 115/1996, the Court of Appeal laid down a number of factors for the sentencing judge to consider in ascertaining the appropriate sentence for credit card frauds. Those factors include but not limited to:

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

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

(iii) Whether there was an international dimension;

(iv) Whether the accused played a major role, e.g. running a syndicate, engaging in actual manufacture, organizing the use of forged cards, or whether he was a mere “cog in the wheel” as a courier or a custodian or keeper; and

(v) Whether there was a plea of guilty.

The Court of Appeal stated in R v Chan Sui-to and another that the sum of money involved was of course only one of the factors to be taken into account but it was not even the most significant factor.

8.  In HKSAR v Cheung Ka-wo Johnny CACC 136/2001, the Court of Appeal stated that:

“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.”

9.  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.”

Sentence

10.   The present case is a relatively minor credit card fraud case involving small amount of money and two false credit cards. There was no evidence of international dimension or any elaborate planning behind the offences either. Having considered the previous Court of Appeal judgments in HKSAR v Watt Siu Hung CACC 93/2001 and HKSAR v Tu I Lang CACC 464/2006, I am going to adopt a starting point of 3 years’ imprisonment for each of the offences the Defendant is convicted of. In light of the Defendant’s guilty plea, I will give him the usual 1/3 discount thus reducing his sentence to 2 years’ imprisonment for each of the offences. There being no other valid mitigating factors justifying further reduction in sentence, the Defendant is sentenced to 2 years’ imprisonment for each of the offences.

11.   On totality, I order the two sentences to run concurrently, thus making a total of 2 years’ imprisonment.