HKSAR v. LOH JOO HOOI

DCCC 207/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 207 OF 2013

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Reasons for Sentence

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Charges and facts

1.  The defendant pleads guilty to 2 charges of using a false instrument and 1 charge of possessing false instruments. 

2.  On 6 January 2013, he used a forged American Express card in the name of LEEHOM KS XIE (“Card A”) to purchase clothing items at Adidas, L8 of Langham Place, Argyle Street, Mongkok.  The goods were valued at $3,544.20 in total.  He threw away Card A after the purchase.  These facts related to the 1^st Charge. 

3.  Later on, he used another forged American Express card in the name of LEEHOM KS XIE (“Card B”) to try to purchase skin care products at L’Occitane, L2 of Langham Place.  The goods were valued at $4,410 in total.  Payment was initially unsuccessful.  The shopkeeper told him to wait for the transaction to complete.  He left after a while without retrieving Card B.  These facts related to the 2^nd Charge. 

4.  The defendant was located by a security staff member in the vicinity.  He put up a struggle until subdued by others.  He threw a wallet onto the ground.  A report was made to the police.  The police arrived and seized the wallet, which contained 3 other forged credit cards, namely an RBC Royal Bank VISA card in the name of DICKY RJ HO (“Card C”), an American Express card in the name of JIMMY TC KU (“Card D”) and a National Bank of Abu Dhabi VISA card in the name of DICKY RJ HO (“Card E”).  These related to the 3^rd Charge.    

5.  The items purchased at Adidas were recovered from the defendant.  After arrest and caution, he said that he had picked up the wallet containing all 5 cards in Shenzhen. 

6.  In an identification parade, the shopkeeper of L’Occitane identified him as the one using Card B at the shop.   

7.  The defendant is a Malaysian man.  He entered Hong Kong on 5 January 2013.  He entered Shenzhen later and returned to Hong Kong on 6 January 2013.  He was granted visitor’s status in Hong Kong. 

Personal background and mitigation

8.  The defendant is now 33 years of age.  He has a clear record in Hong Kong.  He was born in Malaysia and attained diploma level education.  He lived with his wife, 5 young children and parents in Malaysia.  Both he and his wife worked as clerks.

9.  In mitigation, his solicitor maintains his version under caution that he had coincidentally picked up the forged credit cards in Shenzhen. 

10.  A Newton hearing is conducted to see if the prosecution may rebut this said allegation beyond a reasonable doubt.  Only the defendant gives evidence.  He gives an account of how a tight budget had caused him to stay in Shenzhen on the first night. The second day he travelled back to Hong Kong from Shenzhen for business opportunities.  Whilst having lunch at a Hong Kong style café near Lo Wu Control Point before entering Hong Kong, he had by chance dropped his own jacket on the floor beside a wallet.  He picked up the wallet and randomly took out 1 credit card from it.  Out of momentary greed, he kept the wallet and contents.  He says he was scared after the first purchase, so he discarded Card A and he wanted to use Card B to buy skin care products for his wife and afterwards would discard all cards[1].

11.  The first time that he had more thoroughly inspected the wallet and known there were altogether 5 credit cards and nothing else inside the wallet was at Langham Place, just before his purchase with Card A[2]. I do not believe his evidence that he was in possession of a wallet with unknown contents as he crossed the border back to Hong Kong.  It could have been dangerous drugs or other contrabands inside the wallet.  He could have been arrested for more serious offences for such illicit contents.  I do not believe his evidence that he had picked up the wallet and contents from the floor.  I do not believe his evidence that he would discard all cards after either the first or the second purchase.  He actually discarded the 3 remaining cards only when he was about to be subdued.   

12.  I do not find him a credible witness.  In my judgment he would not have brought the wallet across the border to Hong Kong if he had not known of its contents beforehand. Afterwards, clearly he acted on some instructions to discard each card after each purchase, whether successful or not, to foil detection or arrest.  He was the foot soldier of a syndicate.   

Sentencing examples

13.  There are no sentencing guidelines.  The preliminary case to consider is HKSAR v Cheng Sui-to [1996] 2 HKCLR 128.  Yang CJ states that a sentencing judge has to consider at least the following 5 factors before deciding the level of sentence for credit card fraud: 

(1) The size of the operation eg 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, eg 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.

14.  For small-scale straightforward operations involving no international elements, a starting point of 3 years or upwards has customarily been approved by the Court of Appeal (HKSAR v. Yim Wai Ling, William CACC 35/2004; HKSAR v Chen Wing Hong CACC 40/2005; HKSAR v. Yau Hoi Shan CACC 209/2006; HKSAR v. Chan Ka Chung CACC 379/2010; HKSAR v. Kwan Po Keung [2012] 2 HKLRD 12). 

Sentencing this defendant

15.  It is my finding that the defendant had come from Malaysia and entered Shenzhen on the same day in order to collect the 5 forged credit cards for use in Hong Kong. Those cards were apparently issued by international banks.  These international implications warrant a more severe sentence.   

16.  I take a starting point of 3 years and 6 months (ie 42 months) for each offence.  I reduce it by only 10 months, which is less than one-third, due to the failure in the Newton hearing on the part of the defence although he has pleaded guilty.  The eventual sentence is 32 months.  As the offences were proximate in time and location, the sentences shall be concurrent.