HKSAR v. LI KIN PANG

DCCC911 & 1251/2011 (CONS)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 911 AND 1251 OF 2011 (CONS)

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Reasons for Sentence

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1.  Originally, the defendant was charged with seven counts of fraud, two count of theft, three counts of using false instruments and one count of furnishing false particulars to a registration officer in DCCC911/2011. He was found to be involved in another case ESCC3975/2011 and the case was expeditiously brought to the District Court on 2 December.

2.  Leave to consolidate both cases was granted.   Today, the defendant pleaded guilty to these charges in the consolidated charge sheet and was convicted accordingly. 

Brief facts

Background

3.  The defendant and PW1 Ma are close friends.  The defendant told PW1 that he was an insurance agent.  In early 2010, the defendant told PW1 that he wanted to use PW1’s name to take out an insurance policy to meet the quota imposed on the defendant.  As such, PW1 gave his identity card to the defendant for making photocopy.   The defendant assured PW1 that the said photocopy would only be used for the insurance policy.

1st charge

4.  In March 2010, the defendant used PW1’s name and faxed the application form for American Express card to American Express International Incorporation (AE).   The defendant made use of PW1’s personal particulars and provided the defendant’s residential address for correspondence.  The defendant also provided a photocopy of PW1’s identity card, a forged notice of assessment and demand for tax relating to PW1 and a forged bank statement of PW1.

5.  Later, AE approved the application and issued an AE Platinum credit card in the name of PW1 and numbered 3771-1333-2356-1007. The card was sent to the address provided by the defendant in March 2010. 

2nd charge

6.  Between 17 April 2010 and 17 March 2011, the defendant used the said AE Card to pay for the goods and different services, for example, restaurant bills, internet and purchases in bookshops on 27 occasions in Hong Kong.  The total amount involved was $28,730 odd.  The defendant only settled the minimum payment and eventually financial charges in the total sum of $5,800 odd were incurred.

3rd charge

7.  By adopting similar modus operandi, the defendant used PW1’s particulars to apply for a credit card from the Industrial and Commercial Bank of China (Asia) Limited (ICBC) in August 2010.  The defendant provided his residential address.  Apart from the application form, the defendant furnished with ICBC a photocopy of PW1’s identity card, a forged notice of assessment and demand for tax under PW1’s name, a forged salary statement and a forged electricity bill relating to PW1.   Eventually, ICBC issued a Platinum Visa card in the name of PW1 and numbered 427-6255-5002-2114 and sent it to the defendant’s address in August 2010.

4th charge

8.  Between September 2010 and January 2011, the defendant used the said ICBC card to pay for the goods and services that he bought and enjoyed on 16 occasions in Hong Kong.  The total sum was $46,000 odd.  Similarly, finance charges of $3,100 odd were incurred.

5th charge

9.  The defendant also used the ICBC card to withdraw cash by way of cash advance.  Between November 2010 and January 2011, the defendant withdrew cash in the total sum of $60,000 from the ATM machines on 14 occasions.  Again, he only settled minimum payment every month in order continue using the said credit card.  ICBC imposed finance charge of $1,800 relating to these withdrawals.

6th charge

10.  In November 2010, the defendant used PW1’s personal particulars to apply for a credit card from the Standard Chartered Bank (SCB).  The defendant submitted the application via internet and faxed the supporting documents to SCB.  The defendant provided his residential address. The supporting documents that the defendant submitted included a photocopy of PW1’s identity card, a forged notice of assessment and demand tax,  a forged salary statement and a forged electricity bill, all relating to PW1.

The application was approved. SCB issued a Platinum Visa card numbered 4058-0380-1635-8072 in the name of PW1 (SCB Card 1). This SCB Card 1 was used between 10 January 2011 and 25 January 2011. Upon the request of defendant, SCB cancelled Card 1 and eventually issued another Platinum Visa card numbered 4058-0380-1652-3279 in PW1’s name (SCB Card 2) to the defendant.

7th charge

11.  Between 10 January 2011 and 25 January 20101, the defendant used SCB Card 1, which was in PW1’s name, on 4 occasions to buy and/or pay for the goods and services.  The amount totalled $29,600 odd.

8th charge

12.  The defendant also used SCB Card 1 to withdraw cash by way of cash advance.  On 15 January 2011, defendant withdrew cash in the sum of $1,000 from the ATM.

9th charge

13.  On or about 9 March 2011, the defendant applied over the phone for a personal loan of $100,000 by using SCB Card 2.  The application was approved and the loan was granted to the defendant.

10th charge

14.  In January 2011, the defendant went to the office of Pacific Concord Insurance Consultants Limited (Pacific Concord) to attend a job interview as an insurance broker.  Defendant was interviewed by PW7 Lam, the owner of Pacific Concord.  The defendant used his own name in the job application form with certain forged documents attached, namely, a forged certificate of the degree of Bachelor (Science) in Financial Risk Management issued by College of Lifelong Learning of the Hong Kong University of Science and Technology (HKUST) on 10 January 2008; and three certificates of insurance intermediaries qualifying examination purportedly issued by Vocational Training Council.

15.  The defendant was asked to provide further documents and relevant professional licence to support his application.  In March 2011, defendant returned to Pacific Concord and submitted further documents to support his job application. 

The documents included one forged licence dated 23 May 2008 which was purportedly issued by the Securities and Futures Commission.

11th charge

16.  In February 2011, defendant applied to the Hang Seng Bank (HSB) via internet for a credit card in the name of PW1.  The defendant used PW1’s personal particulars for the application but he used his own residential address for correspondence.  The defendant also faxed a photocopy of PW1’s identity card, one forged salary statement of PW1 and one forged credit card’s statement to HSB.  The application was approved.  HSB notified the defendant to collect the credit card in person by showing his identity card.  And this requirement prompted the defendant to commit Charge 12.

12th charge

17.  On 9 March 2011, the defendant went to the Immigration Department in Fo Tan to make a false report of loss of his Identity Card numbered Z3555729(5).  The defendant also applied for a replacement of the Identity Card.  As such the Immigration Department issued a document entitled ‘Acknowledgement of Application for a Hong Kong Permanent Identity Card’ to the defendant (Acknowledgement document).

13th charge

18.  On 14 March 2011, defendant scanned the Acknowledgment document into a computer and then edited the said document by replacing his own particulars with PW1’s.  The defendant then printed out the forged Acknowledgement document in PW1’s name. 

On 16 March 2011, the defendant went to the DBS bank in Mongkok and applied for a credit card in PW1’s name. The defendant used PW1’s particulars in the application and provided defendant’s address for correspondence. The defendant also submitted the said forged Acknowledgment document, one forged salary statement of PW1 and one forged credit card statement to support his application. The branch manageress of the DBS bank suspected the authenticity of the Acknowledgment document submitted by the defendant and she made an enquiry with the Immigration Department. Thereafter, the branch manageress made a report to the police when the former was informed of the forgery.

14th charge

19.  Police investigation revealed that defendant and one Yau are friends for many years.  In October 2009, the defendant met Yau and asked the latter to take out an insurance policy.  Yau refused but agreed to give his Identity Card to the defendant to make a photo as the defendant claimed that he needed to prove to his boss that he had a meeting with Yau.      

20.  On 18 January 2010, the defendant went to the office of Convoy Financial Services Limited (Convoy) to attend a job interview as a financial consultant.  The defendant pretended to be Yau and used Yau’s particulars to complete the application form.  The defendant also provided some forged documents to support his application.   The documents in support of his job application included:

(a) A forged certificate of certified financial planner for Golden Yau issued by Secretary to the Board of the Institute of Financial Planning;

(b) A forged certificate of the degree of Bachelor (Science) in Financial Risk Management for Yau issued by College of Lifelong Learning of the HKUST;

(c) A copy of Yau’s Identity Card;

(d) Four certificates of Insurance Intermediaries Qualify Examination purportedly issued by the Vocational Training Council.

21.  On 4 February 2010, Convoy employed defendant as a financial consultant.  Defendant would receive commission from Convoy during the employment period.  The true identity of the defendant was unearthed when the defendant joined a travel tour organised by Convoy in January 2011.  When confronted by his employer, the defendant admitted that he pretended to be Yau in the job application.  A report was made to the police.      

Arrest of the defendant

22.  Soon after the branch manageress of DBS bank made a report, the police arrived at the scene.  Defendant was arrested and under caution, he admitted that he used the forged identification documents to apply for the credit card.  

23.  In subsequent cautioned interviews, the defendant made admissions and confessed inter alia that:

(a) He used the identity of PW1 to apply for different credit cards from banks;

(b) He forged the bank statements which were used to support various applications for credit cards in PW1’s name;

(c) He forged the salary statements which were tendered for the applications;

(d) He made minimum payments to settle the credit card bills and used the card to buy movie tickets, air tickets and pay for the meals;

(e) He forged the documents to support his job application with Pacific Concord;

(f) He committed the offences out of greed.

Mitigation

24.  The defendant is 27 years old and studied up to Form 7 level and is not a university graduate as stated in the antecedent statement.  His parents and sister are now in court today to show their support. The defendant is regarded by his parents as a good and filial son.  It was submitted that the defendant committed the criminal wrongdoings partly because of his need to fulfil the quota when he worked as an insurance agent.  In was claimed that in one year, the defendant had to pay $300,000 premium, even though he would receive $100,000 as commission. 

25.  The total sum of money in these charges that the issuing banks suffered amounted to about $270,000 odd, including the cash advance and the various purchases etc.  It was submitted that although it required certain level of planning, what the defendant did was not that sophisticated.  The defendant used home computer and scanner to forge the documents.  He committed the crime on his own.  The defendant used his own residential address and he could not escape when the crime unearthed.  

26.  Counsel for the defendant urged this court to take a global view and pass a lenient sentence on defendant.  The defendant’s plea indicated his remorsefulness.

Sentence

27.  It is obvious that defendant is a greedy person.  He was too ready to lie to his friends and make use of every chance to benefit and enrich himself in order to support his living style and standard. It is regrettable to see a young and apparently clever man made use of his wit and wickedness to perpetrate this fraudulent scheme. 

28.  The defendant is aged 27 and had one previous conviction of using a false instrument in September 2009.  On that occasion, the defendant was sentenced to 120 hours of community service.  And yet, the defendant did not grasp the golden opportunity to turn a new leaf and even committed more serious criminal acts. 

29.  The period of the crime in Charge 14 was from 18 January 2010 to 28 January 2010.  Hence the defendant committed Charge 14 either when he was still undergoing the Community Service Order or shortly after he had completed the CSO.  From the fact of the case, it is not difficult to see that there was a degree of planning in this crime which lasted for more than 12 months, from January 2010 to March 2011.   

30.  It is clear that the defendant became more aggressive when he found his fraudulent scheme worked quite well.  No banks could detect his forgery as most of the issuing banks did not require the applicant to show the original documents for inspection.  The defendant lied about his qualification and experience to get a job and used the particulars of his friend to apply for the credit cards.            

31.  Five banks were involved namely, AE, ICBC, SCB, HSB and DBS.  If the crime was not detected by the employer of the defendant, namely, Convoy and the branch manageress of DBS, I am sure that the defendant would perpetrate more frauds by applying more credit cards and personal loans to benefit himself.  He even made a false representation to the Immigration Department in order to get the Acknowledgment document.  All these factors show the level of culpability of the defendant.

32.  In fact, I could see that there are eight different sets of offences in this charge sheet:

(a) Charges 1 and 2 relate to AE;

(b) Charges 3 to 5 relate to ICBC;

(c) Charges 6 to 9 relate to SCB;

(d) Charge 10 relates to Pacific Concord;

(e) Charge 11 relates to HSB;

(f) Charge 12 relates to the Immigration Department;

(g) Charge 13 relates to DBS; and

(h) Charge 14 relates to Convoy.

33.  In order to simplify the sentencing process, I would adopt a global approach in respect of these sets of offences.  I have considered the case HKSAR v Choy Ki-shun [2003]2 HKLRD 575 where the appellant in that case pleaded guilty to 12 offences relating to credit card fraud.  Like the present case, the appellant in that case used the particulars of his colleague to apply for credit cards which was supported by forged documents including salary statements.  Total loss suffered by the victims in that case amounted to about $24,500. 

34.  The Court of Appeal in that case upheld a sentence of 36 months after discount in sentence because of the guilty plea. The Court of Appeal in that case made it clear, that severe deterrent sentence for offences involving credit card frauds is necessary in order to maintain the integrity of the credit card system and public confidence in the system.

35.  In the present case, the total amount was higher to the tune of about $270,000.  I have considered the long period of time that this crime was committed and the scope of forgery.  Although I could pass a heavier sentence on defendant, I would be lenient to him as I am sure the defendant, with his family support, would really reform himself to be a responsible person in society.  I would like to stress that the defendant is wise to plead guilty to these charges which would make him entitled to have one-third discount in sentence.  Otherwise, given the strength of evidence and the nature of the charges, the defendant would face a much heavier sentence. 

36.  Accordingly, I would sentence the defendant as follows:

(a) For Charges 1 and 2 offences relating to AE, I would adopt a starting point of 2 years for each offence and reduce the sentence to 16 months to be served concurrently;

(b) For Charges 3 to 5, the amount involved was higher and the defendant used the card to withdraw cash through ATM on 14 occasions. I would adopt a starting point of 2 years for each and every charge in the charge sheet and reduce the sentence to 16 months to be served concurrently. I will deal with the issue of concurrent sentences or consecutive sentences amongst all these 14 charges at the end.

(c) For Charges 6 to 9, the culpability was higher as two credit cards were issued and more money was involved. The defendant even applied for and was granted a personal loan of $100,000. I would adopt a starting point of 3 years for each and every offence in this set. With his plea, the sentence is reduced to 2 years to be served concurrently.

(d) For Charges 10 and 14, where the defendant used forged documents to apply for employment, I would use 1½ years as the starting point for each offence and reduce it to 12 months to be served concurrently;

(e) For charge 11, I will adopt a starting point of 2 years and with his plea the sentence is reduced to 16 months;

(f) For Charge 12, where the defendant furnished false particulars to the Immigration, the maximum sentence of this charge is one of 2 years’ imprisonment. I would adopt 6 months as a starting point and reduce it to 4 months.

(g) For Charge 13, I would adopt a starting point of 2 years and reduce it to 16 months.

37.  Now I come to the totality principle.  The sentences relating to Charges 1 to 5, Charges 11 and 13 are to be made concurrent, but 6 months out of these sentences is to be made consecutive to the 24 months sentence for Charge 6 to 9, making it a sentence of 30 months.  The sentences for Charges 10, 12 and 14 are to be made concurrently but 3 months of these sentences is to be made consecutive to the sentences of other remaining charges.  That is to say, the total imprisonment term for defendant is 33 months.