HKSAR v. SON LEE PHENG

DCCC 786/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 786 OF 2013

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REASONS FOR SENTENCE

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Introduction

1.  The defendant pleads guilty to three charges of using a false instrument, contrary to s 73 of the Crimes Ordinance, Cap 200 (Charges 1 to 3), one charge of possessing false instruments, contrary to s 75(1) of the same ordinance (Charge 4) and one charge of possession of an identity card relating to another person, contrary to s 7A(1A) of the Registration of Persons Ordinance, Cap177 (Charge 5).

Facts

2.  The facts of this case are relatively straight forward.  The defendant, a Malaysian, entered Hong Kong from the Mainland via Lo Wu Control Point on 11 May 2013.  About one and a half of hours later, she appeared in a retailer shop of Apple in Tuen Mun Town Plaza and presented to the saleslady a false credit card in the name of Wong Weng Lin, the subject matter of Charge 1, trying to purchase an iPhone and an iPad which were worth a total of $9,176.  Having been rejected payment, the defendant presented a second false credit card bearing the same name, the subject matter of Charge 2.  That also failed.  However, the defendant was not deterred and she presented a third credit card again bearing the same name, the subject matter of Charge 3.  The transaction was still unsuccessful and this time, the card centre was alerted.  Shortly afterwards, the Police arrived and the saleslady identified the defendant as the person who used the aforesaid three credit cards.  Upon a search, the Police found in her wallet, among other things, three more false credit cards the subject matters of Charge 4, two of them bearing the name of Wong Weng Lin and the last one bearing the name of Fong Fu Wa.  There was also in the wallet the identity card of a person called Fong Fu Wa, the subject matter of Charge 5, which was reported loss by its owner about a month ago. 

3.  Under caution, the defendant admitted that she was recruited by a male “Ah Ho” to commit the offences and she received the six false credit cards and the identity card earlier the same day from an unknown male in Shenzhen.

Antecedent and mitigation

4.  The defendant is now aged 39.  She is a Malaysian and is educated up to the secondary level.  She resides in Malaysia with her mother, who is now aged 76 and is said to be of poor health.  The defendant has a clear record in Hong Kong. 

5.  Mr Tam, who acts for the defendant, mitigates on her behalf by saying that the defendant worked as a saleslady in Malaysia.  Mr Tam says that apart from looking after her aged mother, the defendant also contributed financially to the maintenance of the households of her two elder sisters.  Mr Tam says that the defendant committed the present offences because of the influence of some bad elements on the Mainland which the defendant got to know through the Internet.  Mr Tam says that the defendant is now truly remorseful and that her risk of re-offending is low.

6.  There are before me two letters written by the defendant, one dated 29 August 2013 and the other 4 October 2013, in both of which she expresses her remorse, saying that she regrets wrongly believing the words of others that she could make money in Hong Kong by making purchases here with credit cards, that she has an elderly mother to take care of back in home and that she wants to serve her sentence as soon as possible so that she can reunite with her mother.  The defendant promises not to re-offend in the future. 

Sentencing principles

7.  The Court of Appeal has repeatedly emphasized that credit card offences are widespread and prevalent, and must be dealt with severely.  Litton JA (as he then was) observed in R v Kwan Ying Ho, Crime Appeal No 527 of 1992 (unreported) that :-

“Credit card frauds have in recent years been an insidious poison in the community. It affects a large number of citizens. It erodes the credit card system and damages Hong Kong’s standing in the international community.”

See also HKSAR v Yau Hoi Shan Shanly [2007] 3 HKC 284.

8.  In the well-known case of R v Chan Sui-to & Another [1996] 2 HKCLR 128, the Court of Appeal listed out various factors which a sentencing judge will need to consider when ascertaining the sentence for credit card frauds, including:-

(a) the size of the operation, e g, whether it involved large sums of money, whether it concerned a large number of persons or forged credit cards;

(b) the planning that had gone into perpetrating the fraud, whether it was elaborate or simple, whether technical skills were used, and to what extent;

(c) whether there was an international dimension;

(d) 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 was a mere “cog in the wheel” as a courier or a custodian or keeper; and

(e) whether there was a plea of guilty.

These factors are, however, not intended to be exhaustive. The Court also pointed out that the sum of money involved is of course only one of the factors to be taken into account and it is not even the most significant factor.

9.  In the later case of HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517, the Court of Appeal went further and said that the amount proved to have been lost by the fraudulent use of credit cards is not an important factor to be taken into account in sentencing for this kind of offences.  It is the potential for losses which is the most important consideration.

Sentences

10.  Applying the above sentencing principle to the present case, I find that: -

(a) The size of the operation is of a small to medium scale in that it involved 6 false credit cards and at least three persons, namely the defendant, the person “Ah Ho” who was behind the defendant and the unknown male in Shenzhen.

(b) Although the offence does not seem to have involved a lot of planning, there was arrangement for the defendant to come to Hong Kong via Shenzhen. Mr Lam in mitigation says that the expenses of the defendant on the mainland were taken care of by her mainland friends and that the defendant was told which shops she should go and what goods she should purchase. Besides, the operation would also involve some technical skills in that false credit cards were made bearing the same name of Wong Weng Lin and one false credit card was made bearing the name of Fong Fu Wa which is the same as the name of the identity card.

(c) There was an international element here in that it involved activities at three places, namely Malaysia, Shenzhen and Hong Kong. Mr Tam in mitigation says that the proceeds of the purchases would be split with the mainlanders.

(d) The defendant played an essential role in the operation in that she was the one who used the false credit cards to make purchase. and

(e) There is a plea of guilty.

11.  As to the potential of loss, it is clear from the facts that had the defendant not been arrested, she would have kept on trying to use the false credit cards to make purchases.  It is also obvious that she possessed the identity card of Fong Fu Wa with a view to facilitate her future use of the false credit card bearing the same name.  Therefore, had the defendant not been arrested, there would have been a potential of significant loss.  In fact, Mr Lam frankly admits in mitigation that there were incidents prior to her arrest that she, on the instruction of some mainlanders, came to Hong Kong from the mainland to make purchases with false credit cards which are not covered by the present charges.  Although the defendant was unsuccessful in her attempts to use the three credit cards in relation to Charges 1 to 3, it would not have reduced her criminality.  This is because she had done everything necessary for the commission of the offence and only failed because of the security measure taken by the credit card company.  Besides, the fact that she had used three false credit cards successively indicates her boldness and the extent to which she was prepared to commit the offences: see HKSAR v Yau Hoi Shan Shanly, supra.

12.  In fixing the starting points of the sentences, I have regard to the judgment of the Court of Appeal in HKSAR v Chan Ka Chung, CACC 379/2010 (unreported) on which Mr Lam relies.  In that case, the Court said that three years is normally an appropriate starting point in respect of purely local, small scale criminal enterprises involving a limited number of credit cards.  I also have regard to the case of HKSAR v Yim Wai Ling, William, CACC 35/2004 (unreported), the facts of which bear some similarity to the present one.  In that case, the applicant tried unsuccessfully to use two forged credit cards in two shops to purchase a computer and a digital camera.  Whilst on bail for those offences, he was found to be in possession of another forged credit card and an identity card belonging to someone else, and on a plea of guilty, an overall sentence of 30 months was considered appropriate.  In the present case, there are of course no offences committed by the defendant whilst on bail.  On the other hand, the fact that the defendant specifically came from Malaysia to Hong Kong to commit offences here is an aggravating factor which was not present in Chan Ka Chung and Yim Wai Ling, William.  In R v Oscar C Ambas & Anor, CACC 441/1994, when dealing with two foreigners who came to Hong Kong to commit credit card fraud, the Court of Appeal had this to say: -

“Foreigners who make lightning forays into Hong Kong with the object of making quick profits from criminal ventures must be discouraged. The pickings are rich and, because of the fact that by the time their offences are detected they have usually left the jurisdiction with their ill-gotten gains, the risk of apprehension is greatly reduced.”

See also HKSAR v Terahara Yoshio, CACC 495/2000 (unreported), where the Court of Appeal agreed with the following sentencing remarks of the judge at first instance:-

“Those who choose to come to Hong Kong from overseas bearing false credit cards should be aware that their presence here is not wanted and that their activities will meet with condign punishment from the courts.”

13.  Having considered the above case authorities and the facts of the present case, I come to the view that the appropriate starting point for each of Charges 1 to 4 is one of 3½ years imprisonment.  After deducting the customary one-third discount for plea, the sentence on Charges 1 to 4 respectively is 28 months imprisonment.  I take the starting point for Charge 5 at 15 months imprisonment: see HKSAR v Shum Chung Wai, supra.  After the one-third discount for plea, the sentence on Charge 5 is 10 months imprisonment. 

14.  As regards the defendant’s family circumstances, there are clear case authorities that they are to be disregarded for sentencing purposes, particularly when the offences she committed are serious.  See HKSAR v Shum Chung Wai [2002] 2 HKLRD 81, quoting what Cons VP said in R v Shipra [1985] 2 HKLR 493, at 494:-

“...a man must appreciate before he commits a crime, that his family will suffer if he is caught and convicted”

and also what Silke VP said in R v Chin Hon-yuen,Criminal Appeal No 393 of 1988 (unreported):-

“...family circumstances are matters which a wise man would take into consideration before he commits an offence not after.”

15.  Having considered the other mitigating factors advanced by or on behalf of the defendant, I do not consider that there are justifications to further reduce the sentences.

Totality

16.  I take the view that all the charges were part of the same incident.  Taking totality into account, I order that the sentences on all charges to run concurrently.  Therefore, the total imprisonment term that the defendant is to serve is one of 28 months.