HKSAR v. NG WAI LEONG

DCCC 233/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 233 OF 2013

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

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

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

Reasons for Sentence

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

1. The defendant has pleaded guilty to two charges of conspiracy to use false instruments, the false instruments being forged credit cards.

2. The first conspiracy was committed between 19 August and 27 October 2012, and he was involved with five others in the commission of that conspiracy.  The second conspiracy was between 29 and 31 October.  There were two others, and 19 forged cards were used. 

3. The facts admitted by the defendant disclose that acting on information, the police suspected the defendant was part of a Malaysian syndicate engaged in the use of counterfeit credit cards in Hong Kong.  A surveillance operation was conducted on the defendant on 31 October.

4. The defendant entered Hong Kong via the Lowu border on that day and met up with a male in Prince Edward.  The two men travelled around San Po Kong and Wong Tai Sin area, and the defendant presented six forged credit cards, all of which were in his name. The six cards all were different cards in the sense that they were purported to be issued by different banks, and the amount obtained from the seven shops visited was just over $1,200.  The six credit cards together with the gift vouchers purchased with the cards were retrieved from the defendant.

5. The defendant was subsequently interviewed and in a video-recorded interview, he admitted his use of counterfeit credit cards since August of 2012.  He said that he was acting under arrangements made with and instructions given by two people whom he referred to as Ah Ken and Fei Tsai.  The defendant said he had got to know Ah Ken, a Malaysian, in 2011 and it was Ah Ken who arranged for the defendant to leave Malaysia and settle in Shenzhen on 15 August 2012. 

6. The defendant was instructed to contact a man called Fei Tsai upon arrival at Shenzhen, and it was upon arrangement with Fei Tsai that the defendant was instructed to take stooges from Shenzhen to shop in Hong Kong using counterfeit credit cards.  After purchases, the defendant would hand over the purchased items to Fei Tsai in Shenzhen and would receive 10 per cent of the total purchase price by way of commission.

7. On about 30 occasions from 19 August to 27 October, the defendant said he accompanied three stooges to purchase with counterfeit credit card purchase in Hong Kong and was given a few thousand dollars by way of commission.

8. He said he did not know where the counterfeit credit cards came from but he was told that the people he was accompanying to Hong Kong would use the counterfeit credit cards for purchasing goods.

9. The defendant further admitted to having used 19 counterfeit credit cards himself from 19(29?) October to 31 October again under the arrangements made by Ah Ken and a second man, this time a person called Ah Tom.  

10. The defendant told the police that by the end of October 2012, he did not have enough money to buy the flight tickets back to Malaysia and contacted Ah Ken for help.  Ah Ken introduced the defendant to Ah Tom and it was Ah Tom who suggested that the defendant make purchases himself using counterfeit credit cards and so earn a higher commission at 15 per cent of the total purchase price.  The defendant agreed to the proposal and gave his full name to Ah Tom to facilitate the production of the forged credit cards. 

11. On 29 October 2012, he came to Hong Kong from Shenzhen and met up with Ah Tom.  Tom told him to pick up seven forged credit cards from behind the toilet water tank in a restaurant in Mongkok, and he then together with Ah Tom went around shops in the Kowloon Tong area and purchased gift vouchers valued at $4,500.  The defendant handed over all the purchased items to Ah Tom and was rewarded with six to seven hundred dollars by way of commission.  He said the seven counterfeit credit cards had been thrown away and he returned to Shenzhen that night.

12. He returned to Hong Kong the following day and again engaged in collecting on this occasion six counterfeit credit cards and going with Ah Tom to purchase several hundred dollars worth of gift vouchers using forged credit cards.  He said his reward was $200, and the six counterfeit cards were thrown away, and he later went back to Shenzhen that night.

13. He came the following day again on a similar expedition to collect credit cards from behind a toilet water tank and go with Ah Tom to a shopping mall this time in Wong Tai Sin.  He on this occasion had cards and tried to purchase a laptop computer worth just in excess of $9,000 and some Cordycepts worth $10,900 but was unsuccessful, but he was eventually able to purchase some food and gift vouchers worth in excess of $1,200.

14. The defendant has a clear record and I am told by his counsel that he also has a clear record in Malaysia.  I am told that he is now aged 39 and is divorced.  He has a son aged 14 who lives with his ex-wife in Thailand, and they are supported by him.  He lived in Ipoh in Malaysia with his father who is now aged 80, and he was educated to secondary education level. 

15. The defendant had worked since 1992 as a maintenance mechanic.  Unfortunately, in 2008, he was involved in a car accident from which he sustained serious injuries to his head, hand and foot and he was unable to work for nine months thereafter, and he was totally dependent on his father to maintain him.  After the period of recuperation, he was unable to return to his former job as a mechanic, and he took over his father’s food stall together with a partner in 2009.  I understand he was earning the equivalent of HK$8,000 a month from running the food stall.

16. I am told that the defendant has been imprisoned since his arrest and is now very remorseful for having committed the offences which he has pleaded guilty to.  The defendant was extremely co-operative with the police and gave detailed information concerning his criminal activities and who he was involved with.

17. I have been referred to a number of cases, including the 1996 case of R v Chan Sui To and that in that case, the Court of Appeal laid down some general guidelines for sentencing in offences of this kind.  These factors included the size of the operation, the planning that had gone into the perpetration of the fraud, whether it was elaborate or simple, whether technical skills were used and to what extent, whether there is an international dimension involved, whether the accused played a major role, example: running a syndicate, engaging in actual manufacture, organising the use of the cards or whether he is a mere cog in the wheel as a courier or a custodian or keeper, and the other fact is whether there is a guilty plea.

18. As is clear from the facts of this particular case, the size of the operation did not involve particularly large sums of money, and in fact as offences of this kind go, the sums of money involved were on the small side. 

19. There was clearly an international dimension to this offence.  The defendant was brought from Malaysia by an acquaintance, that is Ah Ken, to live in Shenzhen where he remained for over two and a half months, and initially his role was to bring people to Hong Kong to purchase goods using counterfeit credit cards, and he claims that he came on 30 occasions between 19 August and 27 October 2012. 

20. Again as offences of this kind go, the planning does not seem to have been particularly elaborate, and as to the role played by the defendant, he was neither involved in running the syndicate nor was he engaged in actual manufacture.  But he was the one that brought people to Hong Kong to use these cards.  He was obviously involved with a syndicate, there was an international dimension, and there were a large number of cards were used.

21. As with all these offences, clearly, they are serious because they undermine public confidence in the credit card system.  One has to look at the potential loss.  According to what the defendant told the police, his attempts to purchase more expensive items such as the laptop computer and some Cordycepts worth around $20,000 were unsuccessful.  The defendant has pleaded guilty and indicated a guilty plea when he appeared before the court on plea day. 

22. Taking into account all the features that have been brought to my attention in this case, I take the view that a starting point of 5 years imprisonment is appropriate, and that should be reduced by one-third to reflect the guilty plea.  So the defendant will go to prison for 40 months.

23. I have considered the question of totality and decided that should be the appropriate sentence for each of the charges, the sentences to run concurrently.