HKSAR v. TAN LIH TAT AND ANOTHER

DCCC87/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 87 OF 2012

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Reasons for Sentence

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1.  D1 and D2, you have pleaded guilty to two offences of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap.200, and you, D1, to a single offence of possession of a false instrument, contrary to section 75(1) of that same ordinance.

2.  You admitted the brief facts and I convicted you.

3.  Briefly, the facts are as follows.

4.  Charge 1, which is against you only, D1, at about 1444 hours on 13 November last, you both entered the Gucci shop at 124-125, Harbour City, Tsim Sha Tsui.  You were served by PW1.  You selected a wallet.  At 1450 hours you, D1, presented an HSBC MasterCard in the name of Gilbert Tan (P1) to PW1 for payment of $3,650.  PW1 issued a receipt and you both left at 1454 hours.  The transaction was recorded on CCTV.

5.  Charge 2.  This also is against you only, D1. At about 1521 hours that day you went to the Louis Vuitton shop at E2-6, Peninsula Hotel Shopping Arcade, Tsim Sha Tsui.  Together you selected two wallets valued at $9,800.  D1, you produced P1 to PW2 for payment.  However, suspecting it to be forged, she alerted her supervisor, who called the police. PW2 pretended to process the transaction and produced a receipt.  However, she told you, D1, that it could not be processed and returned P1 to you.

6.  Charge 3, which is against you, D2.  Upon hearing what PW2 told D1, you, D2, produced a Standard Chartered MasterCard in the name of Eva Tan (P2) to PW2 for payment.  PW2 found that P2 could not be processed and returned it to you, D2.

7.  Charge 4, which is against you, D2.  You, D2, then produced a DBS MasterCard, again in the name of Eva Tan, which is P3. This was for payment of the wallets.  While awaiting processing of P3, two police officers, being PC58490, PW3, and WPC374, PW4, arrived in the shop and kept observation on you.

8.  PW2 found that P3 could not be processed.  She informed you both and you both left the shop.

9.  Charge 5, against you, D1.  PW3 and PW4 followed you both out and intercepted you on Nathan Road.  D1, you were further searched and in a pocket of your jacket a further Standard Chartered MasterCard in the name of Gilbert Tan (P4) was found.

10.  P2 and P3 were found in your handbag, D2.

The arrest and cautioned statements

11.  At 1610 hours, PW3 arrested you, D1, for the offence of using a false instrument and possessing false instruments.  Under caution you claimed you found P1 and P4 in a toilet inside an unknown restaurant.

12.  PW4 arrested you, D2, for using a false instrument but you struggled so much she was not able to issue you a caution.

13.  During a subsequent interview under caution, D1, you stated the following:

(1) you arrived in Hong Kong via Lo Wu at about 1100 hours on 13 November;

(2) you found P1 and P4 in the toilet of a restaurant at about 1300 hours that day;

(3) you used P1 only at the LV shop;

(4) you never used P4; and

(5) you had no recollection of nor comment to make about the incident which is the subject of Charge 1.

14.  D2, you too were interviewed under caution and stated the following:

(1) you found P2 and P3 at Ocean Park on 12 November;

(2) you then took them to a member of staff who said that they did not belong to him;

(3) you used them to buy two wallets at the Louis Vuitton shop out of greed;

(4) you had not otherwise used them; and

(5) the signature on the back of each was yours.

Forensic Examination

15.  P1 to P4 were found to be forged.

16.  Records showed that you both had entered Lo Wu on 13 November on Malaysian passports.

17.  You are both of clear record. 

18.  Mr Lee on behalf of you, D1, and Mr Wong on behalf of you, D2, entered mitigation. 

19.  Mr Lee told me that you, D1, were single, secondary educated and employed as a water dispenser in Malaysia earning approximately 4,000 Malaysian dollars per month.  You are a simple young man who lacks experience and committed the offences out of greed.  Mr Lee produced a letter in Chinese which you had written.  In that letter you expressed your remorse and asked for leniency.

20.  Your parents are present in court today.  They are aged 60 and 52.  They have come from Malaysia to support you.  They are working class people.

21.  Mr Lee continued to say that you have clear record, both here and in Malaysia.  The offence was committed out of greed. You had come to Hong Kong and Shenzhen with D2 for a trip, and because it was cheaper, you lodged in Shenzhen and came on day trips to Hong Kong.  You had come together on 13 November to Hong Kong. 

22.  In Tsim Sha Tsui you were approached by a Chinese male and you were persuaded to use the credit cards.  Two each were given.  You were to receive 10 per cent of the value of any goods obtained.  As your funds were exhausted, you allowed yourself to be persuaded.  The only purchase successfully made was the Gucci wallet, which Mr Lee accepts is lost. He accepted there was a limited amount of organisation within this offence. Whilst accepting that a prison sentence was inevitable, he stressed your plea of guilty, your clear record and asked for leniency.

23.  On your behalf, D2, Mr Wong said you are 22, single, secondary educated and presently unemployed.  Previously you had worked as a beautician, earning 2,000 Malay dollars per month.  Your mother and younger sister have come from Malaysia to support you.  You are of limited sophistication with little idea how credit cards operated.  There is no international element to this offence, and Mr Wong asked me to note that you yourself had obtained nothing.  He produced a letter on your behalf in which you express your remorse.

24.  Mr Wong asked me to differentiate between the sentences, giving you a slightly reduced sentence from that of D1 on the basis that you had only been involved in the offences involving the Louis Vuitton shop.

25.  I turn now to the sentences.

26.  Credit card fraud is widespread and serious. Fortunately in Hong Kong the luxury good outlets are vigilant and aware of the problem. 

27.  I accept the mitigation advanced by both solicitors.  This is indeed, in my opinion, low level unsophisticated fraud with no international dimension even though you are both from Malaysia.  I accept that sentencing should be towards the lower end of the scale.  It is clear that you were preyed upon but you allowed your greed to get the better of you.  I note you are of clear record and relatively young.  Also, it is clear that you enjoy the support of your families as witnessed by their presence here in court. 

28.  I can see absolutely no reason to differentiate between the sentences.  You were demonstrably and obviously acting together.

29.  Taking all matters into account, I am going to deal with you in this way.  On each charge I take as a starting point 30 months’ imprisonment reduced to 20 months, and each will be served concurrently.

30.  You will each therefore go to prison for 20 months.