HKSAR v. HO WAN YIN

DCCC648/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

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HKSAR
v.
Ho Wan-yin

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Before: Deputy District Judge Sham

Date: 1 August 2011

Present: Mr William Siu, SPP of the Department of Justice, for HKSAR
Mr John Davie Andrew Ip, of John Ip & Co., assigned by the Director of Legal Aid, for the Defendant

Offence: (1) – (3) Using a false instrument (使用虛假文書)
(4) Possessing false instruments (管有虛假文書)

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Reasons for Sentence

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1. This is a credit card fraud case. The defendant, Ho Wan-yin, pleaded guilty before me to three counts of using a false instrument,three separate forged credit cards, and one count of possession of false instrument, two forged credit cards. All five cards bearthe names of somebody else.

2. The case arose out of a failed attempt by the defendant to buy three i-Pods valued at $7,000-odd. Having unsuccessfully tried topurchase the i-Pod with three forged credit cards, the defendant intended to leave the shop, but on his way out he was stopped bythe security of the shop that attracted the attention of police officers who happened to be patrolling past the shop. Upon searchof the defendant, they found the five cards in question.

3. Under caution, the defendant said he knew the cards were forged but claimed that they were picked up by him in the street.

4. The defendant has a criminal record of 22 previous. Some are relating to dishonest conduct, but to his credit, he did not haveany conviction relating to credit card fraud.

5. In mitigation, the court is told the defendant is aged 40, married twice, and he has a son from the previous marriage who is beingtaken care of by an adopted family. His wife is a Mainlander who is now in court to show concern and support for the defendant. The defendant does not have much education. He used to work in the construction site as well as in the restaurant but has beenunemployed for over 10 years. The court is told that the defendant has the habit of abusing drugs. The reason he committed thepresent offence was due to financial problems.

6. Counsel for the defendant said the scale of the present case is small. In Chan Sui To, CACC115/1996, in dealing with credit card fraud cases the Court of Appeal has this to say:

“We think however it would be helpful to the courts if they were guided by some criterion. We would therefore suggest that an accusedwho plays an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborateplanning and equipment, and without an international dimension, should receive a sentence of five to six years after trial. Sentencesmay be adjusted upwards or downwards according to circumstances.”

7. In subsequent cases, the Court of Appeal says in dealing with credit card fraud, it is the potential losses rather than actual losseswhich count. It says that when it comes to potential losses, actual losses pale into insignificance; in other words, it is not tolook at how much the offender made out with those credit cards, it is how much he would have been able to make out of it, so it isthe number of cards that are in possession that counts.

8. Your counsel submitted a recent decision, Tu I Lang, CACC464/2006. McMahon J said:

“In a number of cases involving the simple possession or use of a small number of credit cards, this court has approved startingpoints of sentence of three years’ imprisonment, where the operation involved can be fairly described as small scale. Small scalecredit card offences cannot be subjected to strict guidelines; in other words, the lower court can depart from the guidelines asset down in Chan Sui To.”

9. I accept that in the present case it can be described as a small scale operation and there is no evidence to suggest that the defendantis a person in charge of the operation or at the management level, albeit I have grave doubts about his claim that he picked up thosecredit cards in the street.

10. Faced with the court is the possession of five cards. Three attempts were made by him in one single transaction. Given such facts,I am prepared to take a lenient view of the matter, i.e., I will depart from the sentencing guidelines as set down in Chan Sui To.

11. As far as mitigation is concerned, apart from the guilty plea, there is nothing of substance.

12. For each of the offence I take 3 years starting point, reduced to 2 to reflect the plea, all the terms to run concurrently. Thetotal term is one of 2 years’ imprisonment.

Deputy District Judge Sham