A A
DCCC799/2009
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 799 OF 2009
C C
----------------------------
D D
HKSAR
E v. E
Christopher Edward Docherty
F F
----------------------------
G G
Before: Deputy District Judge A. Kwok
Date: 31 August 2009 at 3.46 pm
H Present: Mr Dominic Ngai, PP, of the Department of Justice, H
for HKSAR
I
Mr Kevin Egan, instructed by Messrs Lister Swartz, for I
the Defendant
Offence: (1) to (5) Using a false instrument (使用虛假文書)
J J
---------------------
K K
Reasons for Sentence
L --------------------- L
M 1. The defendant pleaded guilty before me this afternoon M
to five charges of using a false instrument, contrary to section
N N
73 of the Crimes Ordinance, Cap. 300.
O O
2. Now, according to the facts which were agreed by the
P defendant, the five offences all took place in the same P
afternoon between 1.30 pm to 3.30 pm on 30 May 2009. He first
Q went to Fortress at Tsim Sha Tsui and used an IKEA American Q
Express card in the name of another person to purchase two
R R
I-phones valued at HK$12,400 (Charge 1).
S S
3. He then went to another Fortress at Shan Tung Street,
T Mongkok, where he used the same credit card to purchase another T
two I-phones valued at HK$12,400 (Charge 2).
U U
CRT26/31.8.2009 1 DCCC799/2009/Sentence
V V
A 4. Next, he went to another Fortress shop, this time at A
Nathan Road, Mongkok, to purchase yet another two I-phones at
B the same price with the same credit card. However, the B
transaction was rejected after the shopkeepers swiped the credit
C C
card and the defendant just took it back and left the shop
(Charge 3).
D D
E 5. A few minutes later, the defendant returned to the E
same shop and approached the same shopkeeper again and demanded
F to purchase three this time I-phones for HK$18,600. This time he F
presented another IKEA American Express card but with a
G G
different name for payment. As the female name, Jennifer, was
noticed, the shopkeeper was feeling suspicious and asked the
H H
defendant to produce his proof of identity. The defendant then
I
revealed that this credit card belonged to his friend who was I
not in Hong Kong. The shopkeeper refused to accept the payment
J with the use of another’s credit card. As a result, she J
cancelled the transaction, voided the payment and returned this
K credit card to the defendant (Charge 4). K
L L
6. Finally, and seemingly not deterred, the defendant
went to a different shop called Digital Action Telecom Company
M M
in Mongkok to continue to purchase two I-phones valued at
N HK$12,400 with the same credit card which he has failed to use N
in Charge 4. By this time, the transaction was rejected. When
O the shopkeeper of this shop told the defendant that he needed to O
contact the bank as a result, the defendant became very nervous
P P
and snatched the credit card from him and fled. The shopkeeper
later successfully stopped the defendant outside the shop and
Q Q
made a report to the police, Charge 5.
R R
7. After the arrest, the police retrieved a total of four
S I-phones in the backpack worn by the defendant at the time of S
the arrest. Under caution, the defendant admitted to the police
T T
during later investigations that:-
U U
CRT26/31.8.2009 2 DCCC799/2009/Sentence
V V
A (1) These two credit cards were given to him by some A
unknown males in mainland China on around 18 to 22 May
B 2009. The unknown males told him that he could easily B
make money and have fun with the cards.
C C
(2) When the unknown males gave him the credit cards,
D D
he saw that they had cards of a different type other
E than those given to him. E
F (3) He was not told whether the credit cards were fake F
or genuine, but he was told that using the credit cards
G G
in Hong Kong will be the best choice and it was safer
to use them in Hong Kong than in mainland China.
H H
I
(4) He was told to make as many purchases as he could I
and the profit would be shared amongst him and the
J unknown males. J
K (5) He was instructed that if he used the credit K
cards, the cards must be thrown away or destroyed. He
L L
should, however, keep the credit cards if they had not
been used unless in a dangerous situation. If he was
M M
found in possession of the cards, it would be safe for
N him to claim that he had just found the cards, and N
O (6) He used the first credit card to purchase two I- O
phones in Fortress in Tsim Sha Tsui and later two I-
P P
phones in Fortress in Mongkok. He attempted to buy
another two I-phones in a smaller mobile phone shop in
Q Q
Mongkok with the second credit card, but the
R transaction was rejected. He then threw the first R
credit card on the ground upon the arrival of the
S police. S
T T
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CRT26/31.8.2009 3 DCCC799/2009/Sentence
V V
A 8. The security officers of the American Express A
confirmed later with the police that the two credit cards found
B by the police were forged credit cards. B
C C
9. The defendant has a clear record. He is 23 years old.
He is a citizen of Australia and is a university graduate there.
D D
Before coming to Hong Kong, he worked as an English teacher in
E various cities in Guangdong Province, China since 2006. He is E
still single, and his father passed away some eight years ago of
F cancer, leaving his mother who is now in her 60s behind to take F
care of the two sons and a deteriorating family business.
G G
10. In mitigation, Mr Egan submitted to this court a
H H
letter of mitigation written by the defendant. In it, the
I
defendant expressed his sorrow and regrets for what he has done I
and the disgrace and the distress he had brought to the family
J and to his mother in particular. J
K 11. The defendant also told me how he ended up to be K
involved in the present offences. Through Mr Egan, he told the
L L
court that at the time before he took up the offer to use these
forged credit cards to make purchase in Hong Kong, he faced
M M
tremendous financial problems in connection with his job in
N China, especially with travelling expense, having to travel to N
Hong Kong to renew his tourist visa before the necessary working
O visa for his teaching post was to be obtained by the school on O
his behalf.
P P
12. He said he later met a bunch of bad characters in a
Q Q
Muslim restaurant in Guangzhou, who talked him into these
R criminal activities. The defendant vowed to continue his study R
while serving his time in Hong Kong and promised not to
S re-offend again in the future. S
T T
13. Using credit card is, of course, a very serious
offence. But after reviewing the facts of this case, I agree
U U
CRT26/31.8.2009 4 DCCC799/2009/Sentence
V V
A with Mr Egan’s submissions that this present case is also one of A
the small-scale credit card offences. He referred me to one of
B my judgments in June this year, citing the Court of Appeal B
decision in HKSAR v Tu I Lang CACC464/2006 where the Court of
C C
Appeal had said in that case that:
D D
“Where the facts of the offence point to a
small and sophisticated operation, involving
E only one or a few forged cards uncomplicated E
by other evidence materially linking the
offender to a larger operation, then a
F F
starting point of three years’ imprisonment
or less would be appropriate.”
G G
14. Mr Egan stressed the word “less than three years” and
H urged me to adopt that as the starting point and also to order H
that the sentence on all five charges to run concurrently,
I I
taking into account the defendant’s clear record and
exceptionally good background.
J J
K 15. In my mind, this present offence involved a total K
number of five transactions with two forged credit cards,
L although in the end only two were successful. Four items were L
successfully purchased, which is valued in the total amount of
M M
about $25,000. Taking into account that there were five actual
using of the forged credit cards involving two forged credit
N N
cards, I am of the view that a starting point of 3½ years on
O each charge is more appropriate. O
P 16. Taking into account that the five offences were all P
committed in the same afternoon within a short span of about two
Q Q
hours, which represented a series of defendant’s misconduct in
the same day, I agree with the submission by Mr Egan that the
R R
sentence on each charge can be run concurrently.
S S
T T
U U
CRT26/31.8.2009 5 DCCC799/2009/Sentence
V V
A 17. Therefore, my final order for sentence is this. In A
each charge, the sentence would further be reduced by one-third
B to reflect the discount on account of the defendant’s plea, B
which I can see is the only mitigating factor in this case.
C C
Therefore, the sentence on each count is 28 months’ imprisonment
to run concurrently.
D D
E E
F (A. Kwok) F
Deputy District Judge
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT26/31.8.2009 6 DCCC799/2009/Sentence
V V
DCCC799/2009 HKSAR v. CHRISTOPHER EDWARD DOCHERTY - LawHero
A A
DCCC799/2009
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 799 OF 2009
C C
----------------------------
D D
HKSAR
E v. E
Christopher Edward Docherty
F F
----------------------------
G G
Before: Deputy District Judge A. Kwok
Date: 31 August 2009 at 3.46 pm
H Present: Mr Dominic Ngai, PP, of the Department of Justice, H
for HKSAR
I
Mr Kevin Egan, instructed by Messrs Lister Swartz, for I
the Defendant
Offence: (1) to (5) Using a false instrument (使用虛假文書)
J J
---------------------
K K
Reasons for Sentence
L --------------------- L
M 1. The defendant pleaded guilty before me this afternoon M
to five charges of using a false instrument, contrary to section
N N
73 of the Crimes Ordinance, Cap. 300.
O O
2. Now, according to the facts which were agreed by the
P defendant, the five offences all took place in the same P
afternoon between 1.30 pm to 3.30 pm on 30 May 2009. He first
Q went to Fortress at Tsim Sha Tsui and used an IKEA American Q
Express card in the name of another person to purchase two
R R
I-phones valued at HK$12,400 (Charge 1).
S S
3. He then went to another Fortress at Shan Tung Street,
T Mongkok, where he used the same credit card to purchase another T
two I-phones valued at HK$12,400 (Charge 2).
U U
CRT26/31.8.2009 1 DCCC799/2009/Sentence
V V
A 4. Next, he went to another Fortress shop, this time at A
Nathan Road, Mongkok, to purchase yet another two I-phones at
B the same price with the same credit card. However, the B
transaction was rejected after the shopkeepers swiped the credit
C C
card and the defendant just took it back and left the shop
(Charge 3).
D D
E 5. A few minutes later, the defendant returned to the E
same shop and approached the same shopkeeper again and demanded
F to purchase three this time I-phones for HK$18,600. This time he F
presented another IKEA American Express card but with a
G G
different name for payment. As the female name, Jennifer, was
noticed, the shopkeeper was feeling suspicious and asked the
H H
defendant to produce his proof of identity. The defendant then
I
revealed that this credit card belonged to his friend who was I
not in Hong Kong. The shopkeeper refused to accept the payment
J with the use of another’s credit card. As a result, she J
cancelled the transaction, voided the payment and returned this
K credit card to the defendant (Charge 4). K
L L
6. Finally, and seemingly not deterred, the defendant
went to a different shop called Digital Action Telecom Company
M M
in Mongkok to continue to purchase two I-phones valued at
N HK$12,400 with the same credit card which he has failed to use N
in Charge 4. By this time, the transaction was rejected. When
O the shopkeeper of this shop told the defendant that he needed to O
contact the bank as a result, the defendant became very nervous
P P
and snatched the credit card from him and fled. The shopkeeper
later successfully stopped the defendant outside the shop and
Q Q
made a report to the police, Charge 5.
R R
7. After the arrest, the police retrieved a total of four
S I-phones in the backpack worn by the defendant at the time of S
the arrest. Under caution, the defendant admitted to the police
T T
during later investigations that:-
U U
CRT26/31.8.2009 2 DCCC799/2009/Sentence
V V
A (1) These two credit cards were given to him by some A
unknown males in mainland China on around 18 to 22 May
B 2009. The unknown males told him that he could easily B
make money and have fun with the cards.
C C
(2) When the unknown males gave him the credit cards,
D D
he saw that they had cards of a different type other
E than those given to him. E
F (3) He was not told whether the credit cards were fake F
or genuine, but he was told that using the credit cards
G G
in Hong Kong will be the best choice and it was safer
to use them in Hong Kong than in mainland China.
H H
I
(4) He was told to make as many purchases as he could I
and the profit would be shared amongst him and the
J unknown males. J
K (5) He was instructed that if he used the credit K
cards, the cards must be thrown away or destroyed. He
L L
should, however, keep the credit cards if they had not
been used unless in a dangerous situation. If he was
M M
found in possession of the cards, it would be safe for
N him to claim that he had just found the cards, and N
O (6) He used the first credit card to purchase two I- O
phones in Fortress in Tsim Sha Tsui and later two I-
P P
phones in Fortress in Mongkok. He attempted to buy
another two I-phones in a smaller mobile phone shop in
Q Q
Mongkok with the second credit card, but the
R transaction was rejected. He then threw the first R
credit card on the ground upon the arrival of the
S police. S
T T
U U
CRT26/31.8.2009 3 DCCC799/2009/Sentence
V V
A 8. The security officers of the American Express A
confirmed later with the police that the two credit cards found
B by the police were forged credit cards. B
C C
9. The defendant has a clear record. He is 23 years old.
He is a citizen of Australia and is a university graduate there.
D D
Before coming to Hong Kong, he worked as an English teacher in
E various cities in Guangdong Province, China since 2006. He is E
still single, and his father passed away some eight years ago of
F cancer, leaving his mother who is now in her 60s behind to take F
care of the two sons and a deteriorating family business.
G G
10. In mitigation, Mr Egan submitted to this court a
H H
letter of mitigation written by the defendant. In it, the
I
defendant expressed his sorrow and regrets for what he has done I
and the disgrace and the distress he had brought to the family
J and to his mother in particular. J
K 11. The defendant also told me how he ended up to be K
involved in the present offences. Through Mr Egan, he told the
L L
court that at the time before he took up the offer to use these
forged credit cards to make purchase in Hong Kong, he faced
M M
tremendous financial problems in connection with his job in
N China, especially with travelling expense, having to travel to N
Hong Kong to renew his tourist visa before the necessary working
O visa for his teaching post was to be obtained by the school on O
his behalf.
P P
12. He said he later met a bunch of bad characters in a
Q Q
Muslim restaurant in Guangzhou, who talked him into these
R criminal activities. The defendant vowed to continue his study R
while serving his time in Hong Kong and promised not to
S re-offend again in the future. S
T T
13. Using credit card is, of course, a very serious
offence. But after reviewing the facts of this case, I agree
U U
CRT26/31.8.2009 4 DCCC799/2009/Sentence
V V
A with Mr Egan’s submissions that this present case is also one of A
the small-scale credit card offences. He referred me to one of
B my judgments in June this year, citing the Court of Appeal B
decision in HKSAR v Tu I Lang CACC464/2006 where the Court of
C C
Appeal had said in that case that:
D D
“Where the facts of the offence point to a
small and sophisticated operation, involving
E only one or a few forged cards uncomplicated E
by other evidence materially linking the
offender to a larger operation, then a
F F
starting point of three years’ imprisonment
or less would be appropriate.”
G G
14. Mr Egan stressed the word “less than three years” and
H urged me to adopt that as the starting point and also to order H
that the sentence on all five charges to run concurrently,
I I
taking into account the defendant’s clear record and
exceptionally good background.
J J
K 15. In my mind, this present offence involved a total K
number of five transactions with two forged credit cards,
L although in the end only two were successful. Four items were L
successfully purchased, which is valued in the total amount of
M M
about $25,000. Taking into account that there were five actual
using of the forged credit cards involving two forged credit
N N
cards, I am of the view that a starting point of 3½ years on
O each charge is more appropriate. O
P 16. Taking into account that the five offences were all P
committed in the same afternoon within a short span of about two
Q Q
hours, which represented a series of defendant’s misconduct in
the same day, I agree with the submission by Mr Egan that the
R R
sentence on each charge can be run concurrently.
S S
T T
U U
CRT26/31.8.2009 5 DCCC799/2009/Sentence
V V
A 17. Therefore, my final order for sentence is this. In A
each charge, the sentence would further be reduced by one-third
B to reflect the discount on account of the defendant’s plea, B
which I can see is the only mitigating factor in this case.
C C
Therefore, the sentence on each count is 28 months’ imprisonment
to run concurrently.
D D
E E
F (A. Kwok) F
Deputy District Judge
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT26/31.8.2009 6 DCCC799/2009/Sentence
V V