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DCCC1288/2011
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1288 OF 2011
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HKSAR |
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v. |
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Athimulam Devendran (D1) |
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Goh Yee Ping (D2) |
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| Date:
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27 February 2012 at 11.21 am
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| Present:
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Mr Winston Chan, SPP, of the Department of Justice, for HKSAR
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Mr Chan Tin Lup, Trevor, of WT Law Offices, assigned by the Director of Legal Aid, for the 1st Defendant
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Mr James Collins, instructed by Wong & Co., assigned by the Director of Legal Aid, for the 2nd Defendant
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| Offence:
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(1)-(4) Using a false instrument (使用虛假文書)
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(5) Possessing false instruments (管有虛假文書)
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(6) Handling stolen goods (處理贓物罪)
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Reasons for Sentence
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1. The 1st defendant pleaded guilty to 4 charges of using a false instrument and a charge of possession of a false instrument. The 2nd defendant pleaded guilty to handling stolen goods.
2. The facts admitted were that on 2 October 2011, the 1st defendant had used the same forged credit card to make purchases of 3 bottles of perfume and a tablet computer at 4 different locations, 3 of which were at duty-free shops, Tsim Sha Tsui, and one at Fortress, Tsim Sha Tsui. The total value of goods were about $8,500.
3. Both defendants were intercepted later at Sha Tin. Upon search, the 1st defendant were also found 10 forged credit cards while the 2nd defendant put down the bags containing the above items and fled.
4. Upon caution and subsequent video record of interview, the 1st defendant admitted the above offences and stated that he encountered someone in Shenzhen who offered him the forged credit cards and would get 10% of price purchased for reward.
5. For the 2nd defendant, someone asked him to come to Hong Kong to carry things for others, earning $200 per day. Now he also admitted that he knew the bags containingstolen goods and he had dishonestly received them.
6. Both defendants are Malaysians and of clear criminal record in Hong Kong. The 1st defendant is aged 35 and worked as a security guard in Malaysia, earning about and equivalent to HK$2,500 per month.
7. Mr Chan for the 1st defendant says that originally the 1st defendant came to Hong Kong for sightseeing, but then met someone who offered the above jobs for him. As he owed huge debt to a loanshark, he accepted it and is now very remorseful and pleaded guilty at the most early stage.
8. Mr Chan though admits that the offence involving international dimension, also submits that the scale of operation is small and all goods are now recovered.
9. The 2nd defendant is aged 33, separated with his wife, and with a daughter now taken care by his father.
10. Mr Collins submits that regular remittance had been made when the 2nd defendant worked in Thailand as a tour guide, earning about and equivalent to $2,000 to $3,000 per month.
11. Mr Collins particularly submits that though the 2nd defendant may have been around or in the vicinity where the 1st defendant was making purchases, the 2nd defendant did not know anything involving using forged credit cards at all. All he knew was that he would be required to carry some stolen goods for others.
12. Using and possession of forged credit cards are very serious offences. In HKSAR v Chan Sui To [1996] 2 HKCLR 128, the Court of Appeal set out various factors to consider for sentence, including size of the operation, the planning and scale involved, whether there was an international dimension, the role involved and other matters. An accused who played an active but not necessarily a key role in a medium-sized operation involving $50,000 to $150,000 with no elaborate planning and equipment, without an international dimension, should receive a sentence of 5 to 6 years after trial.
13. In HKSAR v Tu I Lang CACC464/2006, where it involved a small unsophisticated operation and involving one or few forged credit cards, uncomplicated by other evidence materially linked to a large operation, a starting point of 3 years’ imprisonment or less would be appropriate.
14. In the present case, there was an international dimension as admitted, but the scale is small and unsophisticated. I will adopt 3 years’ imprisonment as starting point for Charges 1 to 4, reducing it to 2 years upon guilty plea. As to Charge 5, for possession of 10 forged credit cards, I adopt 2 years’ imprisonment as starting point, reducing it to 16 months.
15. For totality principle, taking into account the very early guilty plea of the defendant and all the circumstances and the matters submitted in mitigation, it is appropriate to make all sentences to run concurrently.
16. For the 2nd defendant on handling stolen goods, Mr Collins submits a similar case of HKSAR v Tumurbaatar Enkhbaatar [2010] 4 HKC 211, where an appellant in possession of 2 stolen mobile phones received 8 months’ imprisonment for guilty plea.
17. I note the similarity, but in the present case, there was an international dimension where he was asked in Thailand to come to Hong Kong to commit the present offence.
18. I also take into account the closeness of the handler to the primary offence. Though the 2nd defendant stated that he did not know about the using of forged credit cards in making purchases, the 2nd defendant clearly carried the bags shortly after the primary offence was committed and was with the 1st defendant for quite some time.
19. In the circumstances, I adopt 15 months’ imprisonment as starting point and reduce it to 10 months upon guilty plea.
20. In summary:
The 1stdefendant
Charges 1 to 4: each 2 years’ imprisonment;
Charge 5: 16 months’ imprisonment, to run concurrently with the 4 charges, making a total of 2 years’ imprisonment.
The 2nddefendant
Charge 6: 10 months’ imprisonment.
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