HKSAR V LIM CHEE BOON AND ANOTHER

DCCC 1152/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 1152 OF 2012

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

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

REASONS FOR SENTENCE

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

Overview

1.  D1 is convicted on his own plea of 3 offences which are “Obtaining property by deception” (Charge 1), “Using a false instrument” (Charge 2) and “Possession of false instruments” (Charge 3).  D2 is jointly charged with D1 of Charge 1 and 2 of which he pleads guilty to Charge 1 but not guilty to Charge 2.  Having accepted his plea to Charge 1, Charge 2 for D2 is ordered to be kept on court file and not to be proceeded with without the leave of the court.

2.  All offences involved forged credit cards in the name of another person.

The facts

3.  The facts to which D1 and D2 have admitted reveal that on 15 and 16 October 2012, D1 obtained 3 iPads from two different stores by using 2 counterfeit credit cards in the names of Wu Jee Long and Lee Hua Bee respectively.  Each iPad is valued at HK$5,688.  Theacts of D1 in those transactions were captured by the closed circuit television systems of those stores (Charge 1 and 2).

4.  On 16 October 2012, D1 and D2 were intercepted by police officers for enquiry.  Upon search, six counterfeit credit cards in the name of Lee Hua Bee and a new iPad were found on D1 (Charge 3).  Under caution, D1 admitted the fraudulent use of the counterfeit credit cards to purchase iPads.  D2 also admitted that he accompanied D1 in making the purchases and two iPads had been sold in Shenzhen at a price of RMB 7,200 whilst the remaining one was found on D1.

Mitigation

D1

5.  D1 is now 28 years of age, single and has a clear record.  He came from Malaysia where all his family members reside.  D1 was educated up to Form 2 in Malaysia and worked as a casual transportation worker earning a meager salary of about RM 2,000 each month.

6.  In mitigation, it is submitted that he came to Hong Kong intending to look for job opportunities.  During his stay, he was approached by others who gave him the counterfeit credit cards in question.  It is urged on his behalf that he was a mere courier and was not a party to a large syndicate.

D2

7.  D2 is now 42 years of age who divorced in 1998 and has a daughter aged 15.  He has a clear record.  He was a businessman in Malaysia.  I am told that he came to Hong Kong on 24 August 2012 but in fact had previously spent quite some time here looking for business opportunities in China.  His senile parents are both living in Malaysia.

Sentence

8.  Offences involving credit card fraud are very serious which must attract deterrent sentences.  The gravamen of credit card offences lies in the fact that it would upset the integrity of the credit card system which forms an integral part of the modern commercial world.  It is of paramount importance to maintain the confidence and trust of the people using such system for transactions.

9.  In R v Chan Sui To [1996] 2 HKCLR 128, the Court of Appeal has set out the relevant factors, though not exhaustive, for sentencing credit card offences.  They are the size of the operation; the planning that had gone into perpetrating the fraud; whether the accused played a major role; whether an international element involved and whether a plea of guilty.

10.  I have considered all the cases referred to by the prosecution and the defence[1]. I have also considered the Court of Appeal decisions in HKSAR v Chen Jiasheng & Other CACC 97/ 2011 and HKSAR v Hoong Pang Chong CACC 344/ 2011.

11.  In the present case, both of them were acting in concert in the fraudulent use of the forged credit cards on two successive days.  There is however no evidence to suggest that they were linked to a sizable syndicate or they might have access to more forged credit cards.  I therefore accept that the operation was one of small scale.

12.  Insofar as the international element is concerned, it is confirmed that D1 entered into Hong Kong on 30 September 2012.  Whilst D2 landed on 24 August 2012, it is suggested in mitigation that he had previously travelled between Hong Kong and China much earlier than August 2012.  Given their respective financial and personal backgrounds, one might have serious doubt as to the true purpose of their presence in Hong Kong.  Whatever suspicion I might nurse, I cannot find that they must have armed with forged credit cards when they entered into the territory.  Nor the sole purpose of their visits was to commit offences in Hong Kong.  Furthermore though two iPads were sold in Shenzhen, this only indicates a cross-border disposal of the items fraudulently obtained after the offences had already been completed.  Therefore, I am not prepared to find the presence of an international element in this case.

13.  Nevertheless I cannot lose sight of the fact that there were a total of six forged credit cards found on D1.  This simply suggests that had they not been apprehended they would undoubtedly have gone on to make further purchases.  The potential for losses in the future is an aggravating feature in this case.

14.  It is stressed on behalf of D1 that he was a mere courier.  Given the fact that he was the one who presented the forged cards for transactions, it is apparent that he was playing an active role in the operations, albeit he alleged that those cards were given to him by another person in Hong Kong.

15.  Having considered all the circumstances and everything urged upon me in mitigation, I adopt a starting point of 3 years’ imprisonment for each charge.

D2’s confession

16.  As for D2, apart from some telephone messages or call records, there is no evidence to implicate him and to secure conviction but for his voluntary confession.

17.  In HKSAR v Hui Chi Tong CACC 414/ 2007, the Court of Appeal recapitulated that “Such voluntary admission, coupled with a plea later, showed genuine remorse.  It is in the public interest to encourage an offender to “own-up” to his misdeed and to face the consequence.  The most effective way of giving encouragement is to give a greater than normal discount upon a plea.”[2]

18.  In the circumstances, I consider that his voluntary confession shall attract a further discount of 3 months in his respective sentence.

Totality

19.  As for D1, a starting point of 3 years’ imprisonment is adopted for Charge 1 to 3.  To reflect his guilty plea, the sentence is reduced by one-third to 2 years. Apart from this, I see no other mitigation factors which warrant any further reduction. D1 is therefore sentenced to 2 years for each count.  Though the 1^st two charges were committed on two successive days, they were part and partial of the same fraudulent operation.  Having considered the totality principle, I order all the sentences be run concurrently.  Hence, D1 is sentenced to 2 years’ imprisonment.

20.  As for D2, he is sentenced to 2 years’ imprisonment upon plea for Charge 1 and it is further reduced by 3 months to recognize his voluntary confession.  There are however no other mitigating factors that would attract further reduction.  D2 is therefore sentenced to 21 months’ imprisonment.

Conclusion

21.  In the result, D1 is sentenced to 2 years’ imprisonment and D2 has to serve a prison term of 21 months.