HKSAR v. HO WING LAM AND ANOTHER

DCCC 1036/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1036 OF 2010

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REASONS FOR SENTENCE

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1.  D1 and D2 plead guilty to one joint charge of using a false instrument, contrary to section 73 of the Crimes Ordinance, Chapter 200 (charge 1) and D1 to a further charge of possessing false instruments, contrary to section 75(1) of the Crimes Ordinance (charge 2).

2.  In summary on the 31st July last year the defendants went to the Louis Vuitton shop in the Peninsula Hotel where they used a forged credit card in the name of D1 to purchase two handbags valued at $22,400. The staff suspecting the card was a forgery reported the matter to the police.

3.  After waiting for a while the defendants left the shop when they were apprehended by the police. The police found from D1’s wallet a further three forged credit cards, all in the name of D1.

4.  Under caution D1 admitted the cards were false and that they had been given to her by an unknown person to purchase goods because she did not have any money. D2 admitted she knew the card used to purchase the bags was false and that she acted out of greed.

5.  In passing sentence I take into account the factors which a sentencing judge will need to consider in credit card frauds as set out by the Court of Appeal in R v CHAN Siu-to [1996] 2 HKCLR 128, including the size of the operation; the planning that had gone into perpetrating the fraud and whether the accused played a major role. The factors were not intended however to be exhaustive but provide valuable assistance to the court. The courts have repeatedly stressed that deterrent sentences are to be imposed.

6.  Where the facts of the offence point to a small unsophisticated operation, involving one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years or less may be appropriate (see HKSAR v TU I Lang CACC 464/2006; HKSAR v WONG Chin-hang CACC 409/2008 and HKSAR v CHEUNG Ka-wo, Johnnny [2002] 2 HKC 517 cited by Mr Fenton).

7.  The Court of Appeal have however also upheld starting points higher than 3 years imprisonment for similar offending, see for example HKSAR v AU Yeung Shu-sang CACC 474/2006, where the Court of Appeal said where the defendant was not acting alone and was obviously part of a wider organisation that had caused cards to be printed specifically for him a starting point of 3 years and 6 months imprisonment was appropriate. Each case is however to be decided on its own facts and circumstances.

8.  I have carefully considered everything said by Mr Wong on behalf of D1 together with the content of the defendant’s letter and one from her sister. I take into account D1 was only 20 at the time of the offences and has a clear record. I have carefully considered everything said on behalf of D2 by Mr Fenton, including that the defendant acted out of greed and that she has a young son to look after.

9.  On the facts I accept the defendants were involved in what can be described as a small-scale operation. In respect of charge 1 this involves only one card. High value prestigious goods were targeted. Although D1 and D2 played somewhat different roles, each played an active and important role. D1 had the responsibility of actually using the forged credit card and D2 by pretending to buy the goods added a semblance of verisimilitude to the purchase. I am satisfied no distinction is to be drawn in sentence by reason of the differing roles played by D1 and D2. I am satisfied the proper starting point after trial on charge 1 is 2 years and 6 months imprisonment.

10.  D1 was also found in possession of three more forged cards, indicating that she would no doubt have continued using forged credit cards had the police not apprehended her. All four cards were in the name of the defendant, showing her connection with a wider organisation that had caused cards to be printed specifically forher.

11.  I am satisfied that a starting point of 3 years and 6 months imprisonment is appropriate on charge 2. Taking into account D1’s clear record and young age I am satisfied that an overall starting point for using one forged credit card and possessing three more forged credit cards is also 3 years and 6 months imprisonment.

12.  Giving the defendants full credit for their pleas of guilty they are sentenced as follows:

D1

Charge 1 – 1 year and 8 months imprisonment.

Charge 2 – 2 years and 4 months imprisonment concurrent to charge 1.

I am satisfied a total sentence of 2 years and 4 months imprisonment properly reflects the defendant’s criminal culpability on the two charges.

D2

Charge 1 – 1 year and 8 months imprisonment.