HKSAR v. POON CHO SHU

CACC000055/2000

CACC 55/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 55 OF 2000

(ON APPEAL FROM DCCC 699/1999)

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BETWEEN
	HKSAR	Respondent
	AND
	POON CHO SHU	Applicant

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Coram: Hon Wong JA, Keith JA and Yeung J in Court

Date of Hearing: 8 August 2000

Date of Judgment: 8 August 2000

 

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J U D G M E N T

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Hon Yeung J (giving the judgment of the Court):

1. The Applicant, Poon Cho Shu pleaded guilty before Deputy Judge Geiser to 3 charges of using a false instrument, 1 charge of attempting to use a false instrument, 1 charge of possession of a false instrument and 1 charge of possession of an identity card relating to another person.

2. For each of the 5 charges relating to false instruments, he was sentenced to 3 years' imprisonment to run concurrently.

3. For the remaining charge of possession of an identity card relating to another person, he was sentenced to a consecutive term of 8 months' imprisonment.

4. The Applicant has to serve a total of 3 years and 8 months' imprisonment. He now seeks leave to appeal against the sentences.

5. The brief facts of the case indicate that the Applicant, either alone or together with others, used 3 counterfeit credit cards in the name of Chung Yan Kwei to purchase or attempt to purchase from different shops. Goods and services to the value of $10,000.00 to $11,000.00 were obtained.

6. After he was intercepted by the police, he was found to be in possession of a fourth counterfeit credit card and an identity card also in the name of Chung Yan Kwei.

7. As the learned Deputy Judge quite rightly pointed out, credit card frauds are serious offences and are particularly prevailing in Hong Kong which is very much a consumer orientated society.

8. Indeed credit card payments are probably the most common form of payments nowadays. We are firmly of the view that both the retailers and the consumers are entitled to feel safe in using or accepting credit cards, and credit card frauds must be deterred.

9. To some extent, this is quite a bad case of the type in that the Applicant used or had in his possession 4 counterfeit credit cards in the name of Chung Yan Kwei and he was also in possession of his identity card. The offences were, of course, committed together with others.

10. The learned Deputy Judge had referred to the case of R. v. Chan Sui-to and Another [1996] 2 HKCLR 128 which itself refers extensively to a large number of credit card fraud cases. The learned Deputy Judge adopted a starting point of 4 1/2 years' imprisonment for each of the counterfeit credit card charges and then reduced it to 3 years' imprisonment to run concurrently on account of the Applicant's guilty plea.

11. In Chan Sui-to's case, the 1st Defendant pleaded guilty to and was sentenced to a total of 6 years' imprisonment for 5 counts of possession of false instruments and 1 count of possession of equipment for making false instruments. The 2nd Defendant also pleaded guilty to and was sentenced to a total of 3 years and 7 months' imprisonment for 2 counts of obtaining property by deception, 2 counts of using a forged Hong Kong identity card and 1 count of possessing a false instrument.

12. On appeal, the Court of Appeal reduced their sentences to 3 years' and 2 years' imprisonment respectively, saying that the proper starting point should be 4 years and 3 years respectively. In that particular case, the Chief Justice laid down certain relevant factors that the Court should take into account in sentencing cases involving the use of counterfeit credit cards.

13. We have examined carefully the facts of that case. It is fair to say, as conceded by Mr Lam on behalf of the prosecution that the case against the 1st Defendant in Chan Sui-to's case is perhaps a much worse case. In that case, the 1st Defendant had on his possession, 4 counterfeit credit cards and 12 false telecom phone cards with credit card information encoded on them, as well as someone else identity card. He was also found to be in possession of various equipment for the making of counterfeit credit cards, a large number of counterfeit credit cards and false phone cards in a premises which was described as "the factory".

14. The 2nd Defendant in that case used a forged credit card to make purchase to the total value of about $16,000.00. She also used a forged identity card to obtain service from a telecommunication company.

15. We are persuaded that the culpability of the Applicant is perhaps comparable to that of the 2nd Defendant in Chan Sui-to's case when the Applicant used counterfeit credit cards to make purchase of commodities to the value of $10,000.00 to $11,000.00.

16. We are of the view that the starting point of 4 1/2 years' imprisonment for the false instrument charges adopted by the learned Deputy Judge is excessive and that a proper starting point should be 3 years.

17. Taking into consideration the guilty plea by the Applicant, the sentence should be reduced to 2 years' imprisonment. We are, however, not persuaded that the sentence on the identity card charge should be interfered with.

18. In the circumstances, the sentences on the 5 charges relating to false instruments are reduced to 2 years' imprisonment each to run concurrently but consecutively to the sentence on the identity card charge.

19. The overall sentences are therefore reduced from 3 years and 8 months to 2 years and 8 months. We allow the application, treat the hearing as hearing of the appeal and allow the appeal to the extent as indicated.

 

 

 

Representation:

Mr Gary Lam, GC, for the Respondent

Applicant in person