HKSAR v. LEE CHUN WAI

DCCC 507/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 507 OF 2013

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to two charges of using a false instrument, contrary to section 73 of the Crimes Ordinance, Chapter 200 (charges 1-2) and one charge of possessing false instruments, contrary to section 75(1) of the Crimes Ordinance (charge 3).

2.  In summary on the 19 March this year the defendant went to the Japan Home Centre in Tsuen Wan where he used a forged CHASE MasterCard to buy an electronic razor valued at $398.  The card was however rejected whereupon the defendant produced a forged HSBC VISA card.  This card was also rejected.

3.  The defendant then immediately left the store taking the two forged credit cards with him. The defendant’s exit from the store attracted the attention of patrolling police officers who intercepted the defendant.   DPC 58351 conducted a search of the defendant and found in the defendant’s wallet the two forged credit cards used in the Japan Home Centre together with nine other forged credit cards. Under caution the defendant admitted all the cards were forged credit cards. 

4.  I have carefully considered everything said by Mr Li on behalf of the defendant together with the content of the defendant’s letter.  I take into account the defendant has no convictions relating to forged credit cards however he does have two convictions for dishonesty for which he received a community service order and a short term of imprisonment.

5.  The defendant also has one outstanding case for which he was given court bail.  The significance of this is that the present offences were committed after he was placed on court bail for that outstanding matter.  The commission of offences on bail is an aggravating feature of sentence. 

6.  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; whether there is an international dimension; 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. 

7.  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 for example HKSAR v Tu I Lang CACC 464/2006).

8.  Starting points higher than 3 years have also been upheld for similar offending.  In HKSAR v Au Yeung Shu Sang CACC 474/2006 a case concerning two forged credit cards 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 was appropriate.

9.  In HKSAR v Hau Ka Kit CACC 390/2005 six forged credit cards were used over a period of one and a half months, with some offences being committed whilst on bail.  A sentence of 4 years imprisonment imposed after trial was upheld by the Court of Appeal.

10.  Mr Li submits that by virtue of the number of cards possessed by the defendant this should be regarded as a medium sized operation for which a starting point of 4 years is appropriate.   I note in Chan Siu To the Court of Appeal said a person who plays an active but not necessarily a key role in a medium sized operation, with no elaborate planning or equipment, and without an international dimension, should receive a sentence of five to six years after trial.  This was the subject of comment in HKSAR v Chan Wai Kin CACC 237/2005 where the Court of Appeal also upheld a starting point of 4 years imprisonment for conspiracy to use 3 false Visa cards with fraudulent intent.

11.  Each case is however to be decided on its own facts and circumstances.  Taking into account the defendant was in possession of eleven forged credit cards, seven of which were in his name; two cards were used but without success however no doubt had the police not arrested the defendant he would have continued to use the forged credit cards; the potential for loss on each of the two American Express cards was US$5,000; and that the offences were committed whilst the defendant was on court bail, I am satisfied the proper starting point after trial is 3 years imprisonment on each of charges 1 & 2 and 4 years imprisonment on charge 3.

12.  Giving the defendant full credit for his pleas of guilty he is convicted and sentenced on charges 1 & 2 to 2 years imprisonment and on charge 3 to 2 years and 8 months imprisonment.  I am satisfied in all the circumstances concurrent sentences are appropriate.  The defendant goes to prison for a total of 2 years and 8 months imprisonment.