HKSAR v. SIDECO DAVID MARIA ALEXANDER CORTES AND OTHERS

DCCC 1148/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1148 OF 2012

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Reasons for Sentence

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1.  The 1st defendant has pleaded guilty to two charges of obtaining property by deception. In November 2011 and March 2012, the defendant used two forged credit cards to buy two expensive watches respectively.

2.  The 2nd, 3rd and 4th defendant have pleaded guilty to one charge of a conspiracy to use false instruments, namely, eight forged credit cards.

3.  The facts are as follows;

The four defendants are Philippine nationals.

For Charge 1, in November 2011 the 1st defendant came to Hong Kong and bought a Rolex watch worth $54,300-odd using a forged credit card. He left Hong Kong before he could be detected.

For Charge 2, in March 2012 the 1st defendant came to Hong Kong again and bought a Panerai watch worth $66,975 with a forged credit card.

4.  The 1st defendant was obviously wanted by the police.  They knew his identity and when he came to Hong Kong again on 1 September 2012 he was properly arrested. He had landed in Hong Kong from the Philippines with the other three defendants.

5.  The 1st defendant was detained an was taken to court on 3 September, as required by the law, where the police identified the 2nd defendant and put her under observation.

6.  The police then observed the 2nd, 3rd and 4th defendant later that day go shopping.  In Givenchy in Harbour City, the 2nd defendant waited outside whilst the 3rd and 4th defendant entered the shop.  The two men chose two handbags worth $33,600, which the 4th defendant paid for with a forged HSBC MasterCard.  When the men left the shop, the handbags were passed to the 2nd defendant.  This particular MasterCard was not recovered. 

7.  The police then followed the defendants to a restaurant where they had dinner and the 4th defendant paid for this meal with another forged credit card.  That amount came to $587.  The police then followed the defendants to their hotel.  Several hours later the police raided the room and arrested the 2nd, 3rd and 4th defendant. 

8.  The police found four forged credit cards in the 2nd defendant’s bag.  The police found one forged credit card and three suspected forged Filipino driving licences in the 3rd defendant’s wallet.  The police also found two forged credit cards and three suspected to be forged Filipino driving licences in the 4th defendant’s wallet.  The Rolex of Charge 1 bought by the 1st defendant was found in the 2nd defendant’s bag.

9.  All four defendants cooperated with the police upon arrest.  Under caution the 1st defendant admitted Charges 1 and 2.  He told the police that he had bought the forged credit cards on the Internet.  He also told the police the 2nd defendant was his fiancée.

10.  Under caution the 2nd defendant admitted arriving with the other three defendants on 1 September and it was she who carried the forged credit cards.  When payments were required, she passed the forged credit cards to either the 3rd or the 4th defendant.  She said she had bought these credit cards on the Internet.  The suspected-to-be-forged driving licences were in the names of the forged credit cards, to be used if a separate proof of identity was required.  She pointed out that all the forged credit cards were in male names and she could not shop with them herself.  She also told the police that the forged credit cards found on her had not been used in Hong Kong.

11.  Under caution the 3rd defendant admitted that he came to Hong Kong with the others to use the forged credit cards here.  The agreement was that he and the 4th defendant would receive 40 per cent of the sale proceeds of any goods bought with these forged credit cards and the 1st and 2nd defendant would receive

12.  The 4th defendant, under caution, made similar admissions and confirmed the agreement between the four defendants.

13.  Where Charge 4 is concerned, forged credit cards were used four times.  $33,600 was spent on two handbags and $1,119 was spent on three separate occasions on food and drink.  The total loss was $34,719. The two bags were recovered.

14.  All defendants have clear records in Hong Kong.  That is not surprising as they are not Hong Kong residents but Philippine nationals.

15.  I have heard full mitigation from defence counsel.  She has done her utmost best to put forward all relevant factors for the court to consider.  That includes the background of each defendant as well as letters from the defendants themselves and family members.

16.  In particular, I have been told that the 1st and 2nd defendants should have been married in December last year and, despite their young age, they have been together for many years.  In fact, the 2nd defendant was taken in by the 1st defendant’s family when she was a teenager.  The 2nd defendant, whilst in custody, has given birth to their son in February.

17.  The 1st defendant’s mother has flown here from the United States to support her son, the 1st defendant, and the 2nd defendant.

18.  All defendants are highly educated.  All have university degrees.  All come from close families.  The 2nd defendant considers the 1st defendant’s family her family.  All work hard to support their families.

19.  Clearly, the four defendants have been tempted by greed.  I am sure the ease of getting a forged credit card on the Internet emboldened them to commit these crimes.  The 1st defendant had been here before, used forged credit cards and not been caught.  They must have felt it was foolproof to come here and use forged credit cards and evade arrest by then flying home.

20.  Their actions are very stupid and the offences they have committed here are very serious.  Credit card fraud is rife and a persistent problem.  The loss to financial institutions run into the billions each year.

21.  The defendants may not have been able to inflict much financial damage before their arrest, but as the Court of Appeal said in the authority of HKSAR v Ng Swee Thiam [2001] HKLRD 788, that the amount proved to have been lost by the fraudulent use of a credit card pales into insignificance when consideration is given to the potential for losses in the future and that, I quote, “it is the potential for losses which is the most important consideration”.

22.  Here, there are eight forged credit cards in Charge 4.  I cannot ignore the potential for future loss could have been significant.

23.  What is also relevant here is the number of defendants who have come together to Hong Kong to use forged credit cards to make easy money and, as I have said, eights cards in total is a relevant consideration.

24.  The defendants are not Hong Kong residents and the Court of Appeal authorities have considered whether or not there is an international element relevant but, in my view, the defendants do not belong to an international syndicate.  I believe they did this by their own volition, buying cards online and coming to Hong Kong to try their luck.

25.  There are no straightjacket guidelines for this type of offence involving forged credit cards, except that prison is inevitable.

26.  In looking at appropriate starting points, where there is a small-scale credit card fraud involving local Hong Kong residents, a limited number of credit cards and small amounts of financial loss, those set of facts would attract a 3-year starting point.  This was confirmed in HKSAR v Cheung Ka Wo Johnny [2002] HKC 517 as well as HKSAR v Tu I Lang, CACC 464/2006.

27.  The facts of this case point to a small, unsophisticated operation by four greedy young persons, involving eight forged credit cards, uncomplicated by other evidence such as evidence of a large-scale operation or a syndicate.

28.  After hearing mitigation, the defendants’ backgrounds, their letters written with obvious remorse, I intend to deal with the offences in this manner.

29.  I do add that I am sympathetic to the 1st and 2nd defendants’ child, born in custody and an entirely innocent victim.

30.  I am also sympathetic to the 3rd defendant, whose grandmother is obviously of very poor health, but he must have been aware of her elderly age and ill health when he came to Hong Kong to commit these offences.

31.  Despite my sympathies, I cannot lose sight of the seriousness of the offences.

32.  For the 1st charge, the 1st defendant, there was only one card and the watch was worth over $50,000, but ultimately recovered. I will take a starting point of 2 years and 6 months.

33.  For the 2nd charge, the 1st defendant came to Hong Kong again.  This return to commit the same offence is an aggravating factor.  There was only evidence of one forged credit card but the watch purchased was expensive and not recovered.  For this offence, I will take a starting point of 3 years’ imprisonment.

34.  The 2nd to the 4th defendant face Charge 4 together.  I repeat, there were eight forged credit cards involved, not an insignificant amount.  However, the financial loss was not substantial.  The bags were recovered and the balance was just over $1,000.  However, as I said, the potential for further loss is a relevant factor.  I will take a starting point of 3 years for each defendant.

35.  All defendants are entitled to a discount of one-third for their pleas of guilty.

36.  The 1st defendant, for Charge 1, accordingly is sentenced to 1 year and 8 months; for Charge 2, 2 years.

37.  Bearing in mind the totality principle as well as the facts involved in Charges 1 and 2 and the date both offences were committed, I will order 4 months of Charge 1 to be served consecutively to Charge 2 and the balance concurrently.  That is a total term of imprisonment of 2 years and 4 months.

38.  For Charge 4, the 2nd, 3rd and 4th defendant after a discount for their pleas will be sentenced to 2 years’ imprisonment.