HKSAR v. GUO YAN AND ANOTHER

DCCC 776/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 776OF 2013

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Reasons for Sentence

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Charge and facts

1.  D1 and D2 plead guilty to conspiracy with a person named LIU LINDE and an unknown person to use false instruments, ie 14 false credit cards.  In the afternoon on 1 May 2013 the police spotted D1 and D2 acting furtively in Mongkok MTR station. 

2.  D2 was in possession of a false American Express credit card (“Card iv” as particularized in the charge) whereas D1 was in possession of 13 false credit cards, which bore the following names of banks:

(1) 2 x American Express;

(2) 2 x Capital One Bank;

(3) 3 x Standard Chartered;

(4) 2 x Citibank;

(5) 2 x Wells Fargo Bank;

(6) 2 x HSBC.

3.  D1 also had 1 cardholder receipt dated 30 April 2013 of using a VISA card in the name of LIU LINDE (“Card iii” as originally particularized in the charge but eventually deleted) to buy a SEIKO watch from City Chain at $3,094.  The falsity or otherwise of this card was not confirmed.      

4.  The potential loss of Card iv possessed by D2 and of 2 credit cards possessed by D1 was US$5,000 each.  American Express International Inc. confirmed that these 3 were counterfeit cards.  The other 11 credit cards were examined by government chemist and found to be forged.   

5.  The gist of D1’s admissions to the police includes as follows:

(1) LIU LINDE was his fellow townsman in PRC;

(2) LIU introduced him to D2 and Ah Kit, both Malaysians;

(3) On 28 April 2013, all four of them entered Hong Kong via Lo Wu Control Point separately and met up by phone;

(4) In the hostel in Hong Kong D2 handed him more than 10 credit cards to sign at the back and to make purchases;

(5) Ah Kit also gave some cards to LIU;

(6) He (D1) would receive 10% of the value of goods bought with the cards;

(7) The receipt from City Chain was issued upon his use of Card iii (originally particularized but eventually deleted from the charge) which he had then discarded;

(8) He knew that the credit cards were false.

6.  The gist of D2’s admissions to the police includes as follows:

(1) He came to Hong Kong to deliver the credit cards to D1 to make purchases with;

(2) He would receive 5% of the value of goods bought with the cards.

Personal background and mitigation

7.  D1 is aged 24, a Mainland resident in Hunan.  D2 is aged 34, a Malaysian who married a Mainland wife but was divorced last year.  They have a clear record.  They came from Shenzhen to commit the present offence.  

Sentencing principles

Credit card fraud sentences

8.  In HKSAR v Cheng Sui-to [1996] 2 HKCLR 128, Yang CJ stated that a sentencing judge had to consider at least the following 5 factors before deciding the level of sentence for credit card fraud: 

(1) The size of the operation e.g. whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards.

(2) The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent.

(3) Whether there is an international dimension.

(4) Whether the accused played a major role, e.g. running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he is a mere ‘cog in the wheel’ as a courier or a custodian or keeper.

(5) Whether there is a plea of guilty.

9.  There are no sentencing guidelines.  For a straightforward small-scale operation with no international element, starting points of near or up to 3 years had been customarily affirmed on appeal (eg HKSAR v. Watt Siu Hung CACC 93/2001; HKSAR v. Yim Wai Ling, William CACC 35/2004; HKSAR v. Yau Hoi Shan Shanly CACC 209/2006; HKSAR v. Kwan Po Keung [2012] 2 HKLRD 12).

10.  In HKSAR v Chan Wai Kin CACC 237/2005, the defendant was sentenced to 32 months on a guilty plea which involved 3 credit cards with purchases of over $43,000 in total.  The starting point of 4 years was approved by the Court of Appeal. 

11.  In HKSAR v Cheng Sui Yin CACC 468/2005, the defendant was in possession of 14 false credit cards she claimed to have picked up in Shenzhen.  The cards purported to be issued by banks in England, Netherlands and Turkey respectively.  The potential for loss was US$3,000 each.  The Court of Appeal approved of a starting point of 4 ½ years.   

12.  In HKSAR v Sun Chun Lei CACC 476/2002, the defendant was a Taiwanese visitor.  He had 14 false credit cards whereas his 2 accomplices each had 3.  There was no evidence of actual loss to the credit companies.  The Court of Appeal regarded it part of a well-organized syndicate with an international dimension. A starting point of 5 ½ years was approved.    

Sentencing the defendants

13.  D2 was the courier, whereas D1 was the user, of the credit cards.  They had different roles but equal culpability.  They each set off from the Mainland to commit the present offence.  There were 4 cards which bore the names of foreign banks, ie Capital One Bank and Wells Fargo Bank respectively.  They were the foot soldiers of a syndicate with an international dimension.  The potential for loss in respect of 3 of the credit cards was US$15,000 in total.  I take 4 ½ years as the starting point.  One-third off for the guilty plea, each is sentenced to 3 years.  There are no other mitigating factors.