HKSAR v. CHIU CHUN LUNG AND ANOTHER

DCCC366/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 366 OF 2011

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Reasons for Sentence

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1.  D1 and D2 both pleaded guilty to their respective charges.

Charge 1

2.  D1, using a false instrument and it involved two credit cards.  The facts show D1 used the first credit card to purchase a gold necklace valued at $4,561 from Jusco, but was unsuccessful.  He then used a second false credit card, also unsuccessful. 

Charge 2

3.  D2, using a false instrument.  It also involved two false credit cards.  D2 used the first credit card to purchase $500 cash card from Starbucks, but was unsuccessful.  He then used the second false credit card, but also unsuccessful.

Charge 3

4.  D1, possession of false instrument.  It involved three false credit cards.  Two out of the three cards were the subject matter in Charge 1.

Charge 4

5.  D2, possession of false instrument.  It involved four false credit cards.  Two out of the four cards were the subject matter in Charge 2.

Charge 5

6.  D1 and D2 pleaded not guilty and the court ordered this charge to be left on file and not to be dealt with unless with the leave of the court.

Criminal Record

7.  D1: he had 13 previous convictions.  His last conviction was in 2009 and was similar to the present case.  He was sentenced to 2 years.

8.  D2: 16 convictions.  His last conviction was in 2009, also for the similar offences, and he was sentenced to 28 months.   

Mitigation

9.  In mitigation I am told D1, he is now 35, single, unemployed.

10.  D2, 33, divorced.  He has a son, 14 years old, currently under a Superintendent’s warning.  D2 does not want his son to follow his footstep and ask this court to pass a lenient sentence so that he can look after him and his father who suffered serious kidney problem.  

11.  He committed the present offence due to financial pressure.  However, it has been said many times that financial pressure is not a mitigating factor.

12.  In passing sentence, I have regard to the case of Chan Sui To, [1996] HKCLR 128.  The court laid down guidelines for sentencing the fraudulent use of credit cards.  There are a number of factors need to be considered:-

I. size of the operation such as whether it involves large sums of money,

II. whether it concerned a large number of persons or forged credit cards,

III. the planning that has gone into perpetrating the fraud,

IV. whether it is elaborate or simple,

V. whether technical skills were used and to what extent,

VI. whether there is an international dimension,

VII. whether the accused played a major role,

VIII. whether there is a plea of guilty.

13.  In Lau Pui Hang, CACC393/2003, the applicant was convicted of a charge of conspiracy to use two false credit cards.  The Court of Appeal considered that a sentence of 3 years was appropriate. 

14.  Both D1 and D2 each had their own part to play to use the forged credit cards.  They each used one forged credit card after the other.  It was fortunate that the retailer or the shop did not suffer any loss as a result of their uses.  It was also through pure chance that the police spotted them acting furtively and stopped them for a search that the offences were disclosed.

15.  In Chan Siu To, the court said that the sum involved was also a factor to be considered.  Below $50,000 was considered to be a small scale operation. 

16.  Credit card frauds erodes the credit card system and damages the Hong Kong standing in the international community.

17.  Having considered the cases and bearing in mind the mitigating factors, the fact that there was no evidence of elaborate planning and international dimension, it was a small scale unsophisticated operation, the proper sentence for each charge for each defendant will be 3 years reduced to 2 years because of their guilty plea.             

Order

18.  D1, Charge 1 and 3, each charge 3 years to 2 years, all sentences to be run concurrently.

19.  D2, Charge 2 and 4, each charge 3 years reduced to 2 years, all sentences to be run concurrently.

20.  D1 and D2, although provide information to the police but the information was not useful, therefore no further reduction in sentence.