HKSAR v. LOW KAI GIE

DCCC 194/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.194 OF 2013

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of ‘Possessing false instruments[1]’. The false instruments in question are 2 forged credit cards.

Facts

2.  The defendant is a Malaysian passport holder and he entered Hong Kong on 19^th December 2012.

3.  The defendant was spotted acting suspiciously by plainclothes patrolling police officers at about 5:05pm on 23^rd December. The defendant was at Canton Road near Salisbury Road and he kept looking at the shops nearby.

4.  Police officers decided to intercept the defendant and they revealed their Police identity to the defendant outside Star House 10 minutes later.

5.  Upon a body search, two “Cathay Pacific American Express” credit cards were found in the right front pocket of the defendant’s jacket. One card was in the name of one “Andy PX Jee” and the other “Allen Ki Liu”.

6.  The Police officer asked the defendant where he obtained the credit cards. The defendant replied that they were not his and then ran away. Police managed to subdue the defendant shortly afterwards.

7.  Further search was conducted and HK$500 and RMB800 were found on him. Upon further inquiries, the defendant said he bought the credit cards for HK$1,000 each from an unknown man. The defendant was arrested.

8.  In two subsequent interviews, the defendant admitted under caution that he bought the 2 forged credit cards in Tsim Sha Tsui at about 4pm on the day he was arrested from a man for $2,000 in total. He planned to use them to buy expensive items in order to resell them in Malaysia to make some money. He was arrested before he could use the cards and he did not know how to contact the man who sold him the credit cards.

9.  The 2 credit cards were later confirmed to be forged cards, but they had not been used in any transactions.

10.  The defendant admitted in the last paragraph of the summary of facts that he knew or believed that the credit cards were forged.

Previous Convictions

11.  The defendant is of previously clear record.

Mitigation

12.  The defendant is 28 and used to work as an electrician in Malaysia earning about 2,000 Ringgit per month. He is the eldest of seven siblings, with the youngest 2 brothers still at school. The defendant’s mother works as a barber earing about 800 Ringgit per month.

13.  When the defendant managed to get some work, he would contribute about 400 Ringgit to his mother for her to look after the whole family.

14.  Mr. Tse for the defendant told the court in mitigation that, through the introduction of a friend, when the defendant was in Hong Kong he bought the cards in question from an unknown male, paying HK$2,000 for the 2 cards. The defendant did not know the identity of the seller. Because of his tight financial background and out of greed, he intended to use the two forged cards to buy things in Hong Kong to resell in Malaysia to relieve the financial burden of his mother.

15.  Mr. Tse further submitted that the defendant is remorseful and frankly admitted to the offence. This is his first offence in Hong Kong, which involved only a small,  unsophisticated operation. The forged cards were all bought in Hong Kong and there are no international elements. There was no loss to any of the victims or to the financial institutions.

16.  Mr. Tse proceeded to cite the case if HKSAR v Tu I Lang, CACC 464/2006 and invited the court to impose a minimum sentence so that he can be repatriated to Malaysia soon afterwards to be reunited with his family.

Sentence

17.  The maximum sentence under s.75(1) is that of 14 years’ imprisonment.

18.  In the case of R v Chan Sui To and Another [1996] 2 HKCLR 128, CACC 115/1996, the Court of Appeal decided that “an accused who plays an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of five to six years after trial. Sentences may be adjusted upwards or downwards according to circumstances.”

19.  In the case of HKSAR v Tu I Lang, the applicant, a Taiwanese national, was in possession of 2 forged credit cards. He arrived in Hong Kong the day before he attempted to purchase a mobile phone using a forged credit card. Upon search another two forged credit cards were found on his person and he was charged with possession of false instruments for those.

20.  The Court of Appeal found that, “where the facts of the offence point to a small unsophisticated operation, involving only one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of three years’ imprisonment or less would be appropriate.”

21.  In relation to the fact that the applicant arrived in Hong Kong just one day before using the forged credit card, the Court was of the view that, “While some suspicion must attach to the arrival of the applicant in Hong Kong only the day before these offences were committed the facts of the present case, as accepted by the judge, reveal only a small scale operation with no international dimensions and no other aggravating factors.”

22.  In our present case, only 2 forged credit cards were involved. Although the defendant is a Malaysian national, he bought the cards when he was in Hong Kong and the case cannot be said to have any international dimensions. No one suffered any loss from the defendant’s commission of the present offence, although as indicated in the decided cases it is the potential for loss that the court should consider when deciding the sentence.

23.  Nevertheless, I find that it is as important now as ever to deter credit card frauds in this day and age of ever increasing reliance on electronic transaction methods.

24.  I find that an appropriate starting point is that of 3 years’ imprisonment. This is discounted to 2 years’ imprisonment in recognition of the defendant’s guilty plea.

[1] Contrary to s.75(1) of the Crimes Ordinance, Cap. 200