HKSAR v. FONG WAI CHUNG

DCCC 731/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 731 OF 2014

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant, Fong Wai-chung, pleaded guilty before me to three charges: Charge 1, “Using a Forged Identity Card”; Charge 2, “Obtaining Property by Deception”; and Charge 3, “Using False Instruments”.

2.  Charge 1 concerned the use of a forged Hong Kong Identity Card in an application for a credit card made by the defendant.  For Charge 2, the defendant used the same forged identity card when he purchased a gold bracelet from a jewellery shop.  He also used the credit card that he obtained from Charge 1.  For Charge 3, the defendant produced the same forged Hong Kong Identity Card and a forged bank statement to a financial company when he applied for a loan.

3.  On 28 May 2014, the defendant attended the AEON Credit Service (Asia) Company Limited to apply for a credit card.  When asked for proof of identity, the defendant produced a Hong Kong Identity Card bearing No P539609(7) in the name of Leung Shek-ho.  He then filled in and signed an application form.  The application was approved and the defendant was issued with an AEON credit card with a credit limit of $15,000.

4.  Later, in the afternoon on the same day, the defendant went to a jewellery shop in Kowloon City and purchased a gold bracelet with the use of the credit card.  He also produced the forged ID card as proof of his identity.  The gold bracelet was sold for $14,570. 

5.  The defendant then applied for a loan at the AEON Store in question.  In the course of his loan application, the defendant was asked to provide his proof of income, proof of address, bank account information and his Hong Kong Identity Card.

6.  The defendant initially applied for a loan of $80,000.  As he requested the loan to be provided in cash, the AEON Store told the defendant that the amount would be reduced to $40,000 instead.  The defendant agreed.

7.  On 1 June 2014, at around 4 pm, the defendant went to the AEON Store in question to follow up the loan application.  He provided the AEON Store with the false instruments in question, ie the forged Hong Kong Identity Card and a forged bank statement purportedly issued by Hang Seng Bank; both in the name of Leung Shek-ho. 

8.  The staff member who dealt with the defendant on this occasion was also the staff member who had received the defendant on 28 May when the defendant applied for a credit card.  The staff member examined the Hong Kong Identity Card produced and found that it was thicker than normal. Because of the abnormalities observed, the staff member asked the defendant to return later so that the AEON Store can seek supervisor’s approval for the loan application. 

9.  A report was made to the police.  When the defendant returned to the shop, he was arrested by the police officers. 

10.  Under caution, the defendant admitted that he obtained the forged Hong Kong ID card and the bank statement in Shenzhen.  He used the items to obtain money from AEON Store as the defendant had no money. 

11.  In his subsequent cautioned interview, the defendant admitted:

(i) He paid one Mr Lee Renminbi 800 Yuen in Shenzhen about a month earlier for the forged items including the HKID card and the bank statement. That Mr Lee suggested to the defendant that the defendant could use the items to apply for a credit card in an AEON branch. As the defendant was greedy, he followed Mr Lee’s suggestion;

(ii) The defendant went to the AEON Store in question to apply for a credit card using the HKID card and he collected the credit card on the same day;

(iii) The defendant then went to a jewellery shop in Kowloon City and he bought a gold bracelet for about $14,000 which he later sold in Lo Wu. He spent the money obtained in Shenzhen on gambling and food;

(iv) The defendant discarded the receipts of the bracelet as well as the AEON credit card as its credit limit was exhausted;

(v) After the defendant’s first successful use with the credit card, he applied for a loan at the AEON Store using the bank statement as well. He was later arrested by the police.

12.  Examination by government chemist confirmed that the Hong Kong Identity Card used by the defendant was a forged one. 

13.  Mr Leung Shek-ho, the person referred to in the forged Hong Kong identity card was contacted.  Mr Leung confirmed that the information on the Hong Kong Identity Card matched his information except the photograph. 

14.  As for the forged bank statement, the information and address shown on the bank statement was correct except the telephone number.  And, more importantly, Mr Leung never had the account as stated in the bank statement. 

15.  Mr Leung did not know the defendant and he had no idea why his personal information was used.

16.  The defendant had four previous convictions recorded against him.  He had twice been convicted for theft and he had also been convicted for fraud on two occasions. 

17.  The antecedent statement of the defendant shows that he is now aged 30.  He had received education up to Secondary 3.  He worked as a waiter in 2013.  At the time of the offences, he was not employed. 

18.  Ms Chow in mitigation told me the defendant is married and his wife resides in Shenzhen.  The defendant committed the offences in question out of financial need. 

19.  After the defendant’s release in prison from his last conviction, he tried to find a job.  But all his attempts were fruitless.  But the defendant was a person with strong pride, he was too proud to apply for CSSA.  He continued in his attempt to look for a job. 

20.  As the defendant’s relationship with his family members was very distant, he was only able to sleep at places like public parks or under flyovers.  He was able to find a job in March 2014.  He worked as a transportation worker for a few days and he earned around $1,000.  With that money the defendant returned to Shenzhen to visit his wife.  Unfortunately, the defendant’s wife was also unemployed at that time.  She was staying with her friend and the defendant was unable to stay with her.

21.  It was the defendant’s plan to share the $1,000 he had with his wife, but he met a Mr Lee in Shenzhen.  The two then had a conversation.  Lee told the defendant that he had been in financial difficulties before and he used a forged Hong Kong Identity Card to apply a credit card and was successful in doing so. He suggested to the defendant that the defendant could also follow suit.  He told the defendant that the defendant could get a forged Hong Kong Identity Card and a forged bank statement for 800 renminbi. 

22.  The defendant was persuaded.  He paid $800 to Lee and he got the forged Hong Kong identity card and the forged bank statement from Lee. 

23.  Miss Chow draws my attention to the case HKSAR v Ye Furen HCMA 1008/2009.  The appellant in that case used a forged Hong Kong Identity Card which he bought in Shenzhen to open a bank account in Hong Kong.  Deputy High Court Judge Andrew Chan, as he then was, observed in paragraph 5 of the judgment that:

“If mere possession of forged ID card merits a sentence of 12 months’ imprisonment, the actual use of the forged ID card and the commission of further offence, in my opinion, attract another 3 months’ imprisonment.”

24.  On Charge 2, Miss Chow submits that the credit limit granted was $15,000, was not a small amount but not a huge amount either.  The maximum loss that the defendant could cause to the victim was $15,000.

25.  As stated in the Summary of Facts, the defendant bought a gold bracelet with the use of the credit card and he sold the bracelet for $14,000.  For the proceeds that the defendant obtained, he gave some of the money to his wife and he spent some of the money on food.  The defendant told the police he spent some of the money on gambling as the defendant did not want to implicate his wife. 

26.  Miss Chow draws my attention to HKSAR v Lam See Chung, Stephen [2013] 5 HKLRD 242.  Miss Chow draws my attention to holdings 1 at page 243 of the judgment:

“The 3-year starting point for simple cases of counterfeit credit card fraud also applied to the fraudulent use of stolen genuine credit cards. Many of the aggravating features of using counterfeit credit cards were peculiar to syndicated fraud and were absent in simple, small scale use of forged credit cards for which a sentence of 3 years’ imprisonment or less was appropriate. The same sentencing principles of which the most important consideration was the potential for loss which often exceeded the actual loss applied to both types of offences.”

27.  Miss Chow submits that in the present case the defendant was acting lone, he was not working for a syndicate.  The fraudulent scheme was not a sophisticated one and as far as loss is concerned, the defendant had occasioned $14,000 loss to the victim.

28.  On Charge 3, Miss Chow draws my attention to the case HKSAR v Chiu Ka Kin CACC 158/2007.  In the case of Chiu, the applicant used a forged employment letter and salary record from a non-existent employer.  With the false instruments, the applicant successfully procured a loan of $30,000 from a financial company.  The Court of Appeal dismissed the appeal and took the view that the overall sentence of 36 months was not manifestly excessive or wrong in principle. 

29.  Miss Chow hands up to me a letter written by the defendant in which the defendant expresses his remorse.  And she also hands up a bundle of confession written by the defendant, 223 pages in total. 

30.  Finally, Miss Chow asks me to bear in mind the principle of totality. 

31.  In sentencing the defendant, I have borne in mind the facts as admitted by the defendant, the nature of the offences in question, the background information of the defendant and all the matters urged on the defendant’s behalf by Miss Chow.

32.  On Charge 1, the defendant pleaded guilty to the offence, he is entitled to the customary one-third reduction. 

33.  Taking into account what Deputy High Court Judge Andrew Chan, (as he then was) said in HKSAR v Ye Furen HCMA 1008/2009, a sentence of 15 months on a plea is appropriate. 

34.  The defendant used a forged ID card in his application for a credit card.  For the reasons given, on Charge 1, I sentence the defendant to 15 months’ imprisonment.

35.  Charge 2 concerned the use of a credit card unlawfully obtained by the defendant.

36.  In sentencing the defendant, I have borne in mind the amount of loss that the defendant caused to the victim.  And it appears that the defendant committed Charge 2 on his own and was not working for a syndicate. 

37.  In the case HKSAR v Tu I Lang CACC No 464/2006, the Court of Appeal observed in paragraph 10 of the judgment that:

“Where the facts of the offence point to a small unsophisticated operation, involving only one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate.”

38.  The second case cited by Miss Chow, HKSAR v Lam See Chung, Stephen echoed what the Court of Appeal said in Tu I Lang. 

39.  The defendant in the present case did not only use the credit card, he also produced the forged identity card as proof of identity.  In my judgment, a starting point of 3 years’ imprisonment is appropriate.

40.  The defendant is entitled to one-third reduction for his plea of guilty.  Apart from the guilty plea of the defendant, I can see no other mitigating factor that can further reduce the sentence.

41.  For the reasons given, on Charge 2, I sentence the defendant to 2 years’ imprisonment.

42.  For Charge 3, the defendant used the forged Hong Kong Identity Card for the third time.  He also produced a forged bank statement in support of his loan application.  He asked for a loan of $80,000, but he finally agreed to a reduced amount of $40,000.

43.  In my judgment, a starting point of 2 years’ imprisonment is appropriate for Charge 3.

44.  Again, the defendant is entitled to one-third reduction for his guilty plea which will bring the sentence down to 16 months. 

45.  For the reasons given, on Charge 3, I sentence the defendant to 16 months’ imprisonment.

46.  I bear in mind the totality principle.  The three charges in question, in my judgment, call for partly consecutive terms of imprisonment.  In my judgment, a total term of 3 years’ imprisonment should adequately reflect the overall criminality of the three offences in question. 

47.  In order to achieve the desired totality, I order that 6 months for the sentence of Charge 1 shall run consecutively to the sentence for Charge 2 and 6 months for the sentence of Charge 3 shall run consecutively to the sentences for Charge 1 and Charge 2.