HKSAR v. TAN BOON LENG

DCCC849/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 849 OF 2011

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one offence of possessing false instruments, occurring on 8 June 2011. The instruments were a Standard Chartered Bank MasterCard and two American Express cards. The defendant is alleged to have known or believed them to be false.

2.  The defendant has had the facts put to him and admitted them, and I have convicted him on the basis of those facts.  The facts show that the defendant is the holder of a Malaysian passport.  He comes from Penang.  On 8 June 2011 he was permitted to stay for 90 days as a visitor.  He was with a Mr Chan, who is also from Malaysia. 

3.  He and Chan were in Canton Road in Tsim Sha Tsui at about 6 o'clock in the evening of 8 June.  Police officers considered them to be acting suspiciously and intercepted them.  The defendant was searched. In his possession was found the Standard Chartered Bank MasterCard and the two American Express cards set out in the charge.  They were all in the name of Lo Boon Siew, and they are listed as Exhibits E1 to E3. 

4.  The defendant was cautioned.  He said these cards E1 and E3 were forged.  They were bought from a friend in Penang.  He was asked if he had used the cards.  He said that he had used the Standard Chartered Bank MasterCard to purchase some cosmetic products in Mong Kok that afternoon.  There is no charge in relation to that incident.  Some cosmetic products were found in Chan’s possession. 

5.  The defendant further admitted he bought the cards for 1,500 Malaysian Ringgits from a friend in Penang.  The cards were later examined and confirmed to be false instruments.  Obviously these facts have proved the offence that the defendant is charged with. 

6.  As far as the defendant’s antecedents are concerned, he is of clear record.  He is 26 years old.  He was previously employed as a construction site company worker.  His further personal details were submitted by Mr Tse in mitigation.  He was born in Penang in Malaysia.  His father and mother had divorced some time ago, but he lives with his mother who is 45 years old and a hawker.  He has a younger sister who is 15 years old.  He himself had studied up to the age of about 16 and then became a decoration worker.  At that time he earned 2,000 Ringgits per month and gave about 900 of those to his mother.

7.  Sometime in 2009 he fell whilst at work and injured himself seriously on the skull area.  He also suffered a brain haemorrhage.  He was in hospital for four weeks and has not really been employed since then.  He has had no compensation and suffers at times from severe headaches.  In this case he said he thought he felt he had been made use of by one Ah Sing who had sold the cards to him for the 1,500 Malaysian Ringgits. The idea was he would buy things here, take them back to Penang where he would get a reward for it.  He was cooperative with the police on arrest, telling them about the previous use of the card to purchase cosmetics. 

8.  I have been very helpfully referred to the general principles on sentencing by defence counsel.  These are generally found in the case of Chan Siu To.  And the factors I should look at are the size of the operation.  Does it involve large sums of money or numbers of persons or forged credit cards?  Was it elaborate or simple?  Was there an international dimension?  What was the role the defendant played?  And, of course, whether there is a plea of guilty. 

9.  In the case of Chan Siu To the court set out a tariff in respect of what is described as a medium sized operation, which is between $50,000 and $150,000, with no elaborate planning and equipment and without an international dimension.  And a sentence of between 5 to 6 years after trial could be imposed.

10.  Perhaps more useful to the facts of this case is the case of HKSAR v Tu I Lang where in that case the defendant pleaded guilty to two charges involving the use and possession of two credit cards. The case and the facts were straightforward, like the case and the facts of this case.  The defendant tried to use a forged credit card to purchase something from Fortress, and when he had been apprehended by police another two forged credit cards had been found in his possession.

11.  The court reviewed the various authorities and sentences that have been passed in the past, but the court indicated that they consider this to be what would be described as “small scale operation with no international dimension or aggravating factors.

12.  I consider a starting point for sentence of 3 years’ imprisonment would be appropriate in those circumstances.  This is a small scale operation involving three forged credit cards, very limited planning by this defendant in that he just simply took the cards and was going to use them. 

13.  The defendant was here from Malaysia, but I do not think we would describe that as being international dimension.  And, in fact, the facts of this case differ hardly at all from the facts of the case dealt with by the Court of Appeal in Tu I Lang, which appears to say that in these are small scale cases a starting point of 3 years’ imprisonment is appropriate. 

14.  I shall take that starting point for the defendant in this case.  I take a starting point of 3 years’ imprisonment.  The defendant is entitled to a full discount of one-third from that sentence.  As a result of his plea of guilty that leaves us with a sentence of 2 years’ imprisonment.