HKSAR v. SO MA TAI

DCCC 94/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 94 OF 2011

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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.

2.  In summary on the 21st November 2009 the defendant went to ACANTA cigar shop in Gateway Arcade, Harbour City in Tsim Sha Tsui.   The defendant used a forged visa credit card in his name to purchase a box of COHIBA cigars valued at HK$6,728. About eight minutes later the defendant entered the shop again and asked for another box of COHIBA cigars.  The defendant used the same forged credit card but this time the transaction was not successful.  The defendant then took out a forged MasterCard credit card, also in his name.  The staff of the shop feeling suspicious told the defendant the MasterCard was invalid as well.   

3.  The defendant then left the shop when he was intercepted by the police, who had been following the defendant and the other males with him.  The police found the two forged credit cards from the defendant’s wallet. 

4.  Under caution the defendant said he had been approached the day before by an unknown male asking him if he wanted to earn some quick money.  Earlier that afternoon the defendant met the unknown male again who gave him the two forged credit cards and instructed the defendant to purchase goods, for which the defendant would be given 10% of the total purchase value.  Three males would follow the defendant around while he made the purchases.  The defendant gave the box of cigars to one of these males together with the receipt. 

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; whether there is an international dimension; and whether the accused played a major role.  The factors were not intended 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 the case cited by Mr Mui, HKSAR v POON Cho-shu [2000] 3 HKLRD 110).

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 Mui on behalf of the defendant both in his written submission and in court yesterday, including that the defendant committed the offences because he was unemployed at the time and needed money to support his fiancée. 

9.  Mr Mui submits by reason of the fact goods to the value of under $7,000 were obtained a starting point of 2 years and 6 months is appropriate.   As was said in CHAN Siu-to the sum of money involved is only one factor to be taken into account and is not the most significant factor.  Had the second transaction been successful the value of goods obtained would have been double.   Further the defendant no doubt would have continued to use forged credit cards had he not been intercepted by the police.  Clearly the potential loss was therefore greater.

10.  On the facts I accept the defendant was involved in what can be described as a small-scale operation.  Taking into account goods of not insignificant value were targeted; both cards were in the name of the defendant, showing his connection with a wider organisation that had cards printed specifically for him; and that he acted with other persons, who received the cigars from him resulting in the cigars not being recovered by the police, I am satisfied the proper starting point after trial for each charge is one of 3 years and 6 months imprisonment.

11.  Giving the defendant full credit for his pleas of guilty he is sentenced 2 years and 4 months on each charge.  Taking into account the offences were committed within eight minutes of each other, on the same shop, I am satisfied concurrent sentences are appropriate.  I am satisfied a total sentence of 2 years and 4 months imprisonment properly reflects the defendant’s criminal culpability on the two charges.

Delay

12.  The offences were committed in November 2009, over 15 months ago.  The prosecution explain one reason for the delay was in obtaining confirmation from the banks as to the true account holder.  This took time because the banks are overseas banks thereby adding an international dimension to the case.  The Visa card was issued by a bank in Canada and the MasterCard by a bank in the U.S.A.  

13.  The fact the cards purport to be issued by overseas banks can be seen on the reverse of both cards and Canada is seen on the front of the Visa card.  Mr Mui submits by reason of the prosecution not including this in the summary of facts I should not take this into account in passing sentence.  Whilst better to include in the facts the cards purport to be issued overseas the cards are self evident and this is therefore a factor the court can take into account. However even adding an international dimension in that the cards purported to be issued overseas does not in the circumstances of the case increase the starting point beyond 3 years and 6 months imprisonment.

14.  Albeit the time taken to charge the defendant and bring him to court in what is a relatively straight forward credit card fraud was somewhat long, I am satisfied for the reasons given the prosecution are not at fault.  Having carefully considered the matter, I am satisfied no further discount should be given on account of delay.  The defendant goes to prison for 2 years and 4 months.