HKSAR v. CHOW KA CHUN

DCCC 466/2023

[2024] HKDC 743

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 466 OF 2023

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REASONS FOR SENTENCE

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1.  Mr Chow pleaded guilty before me to 4 charges on a Charge Sheet as follows.

2.  Charge 1 is Possession of identity cards relating to other persons, contrary to section 7A(1A)  of the Registration of Persons Ordinance, Cap 177. Particulars are that he, on 3 August 2022, at Room 3A, “Ho King Guesthouse”, 1^st Floor, No 179 Yu Chau Street, Sham Shui Po, Kowloon, in Hong Kong, without lawful authority or reasonable excuse, had in his possession:-

(1)  One Hong Kong Identity Card which related to another person, namely, Choy Kei Yu;

(2)  One Hong Kong Identity Card which related to another person, namely, Wong Suet Ying;

(3)  One Hong Kong Identity Card which related to another person, namely, Wong Pui Wah;

(4)  One Hong Kong Identity Card which related to another person, namely, Chuang Hung Mui Maggie; and

(5)  One Hong Kong Identity Card which related to another person, namely, Tang Lin Cheong.

3.  Charge 2 is Conspiracy to forge documents, contrary to section 71, 159A and 159C of the Crimes Ordinance, Cap 200.  Particulars are that he, between 19 July 2022 and 3 August 2022, both dates inclusive, in Hong Kong, conspired with a person unknown, to make instruments, namely Hong Kong Identity Cards, which were false in that they purported to be made in the forms in which they were made on the authority of a person who did not in fact authorize their making in those forms, with the intention that he (Mr Chow)  or another would use them to induce someone to accept them as genuine and by reason of so accepting them to do or not to do some acts to his own or any other person’s prejudice.

4.  Charge 3 is Possession of equipment for making false instruments, contrary to section 76(1)  of the Crimes Ordinance, Cap 200.  Particulars are that he, between 2 and 3 August 2022, both dates inclusive, in Hong Kong, had in his custody or under his control implements or other materials which to his knowledge had been specially designed or adopted for the making of instruments, namely one pair of scissors, one roll of tape, one roll of transparent plastic film, one USB drive, one paper cutter, one photocopier and two pieces of paper, with the intention that he or another would make false instruments and that he or another would use those false instruments to induce somebody to accept them as genuine, and by reason of so accepting them to do or not to do some act to his own or any other person’s prejudice.

5.  Charge 4 is Failing to surrender to custody without reasonable cause, contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap 221.  Particulars are that he, on 1 August 2023, in Hong Kong, being a person admitted to bail, without reasonable cause, failed to surrender to custody as had been appointed by a court.

Facts admitted by Mr Chow

6.  On 3 August 2022, at around 1119 hours, police went up to Ho King Guesthouse (“the Guesthouse”)  on 1/F of a building in Sham Shui Po.  Mr Chow was sitting at the staircase on 1/F outside the Guesthouse.  Police kept him under guard.  After making enquiries with the guesthouse staff, police came to know that Mr Chow had just checked out from Room 3A.

7.  Mr Chow confirmed to the police that he stayed in Room 3A alone from about 8 pm the previous night to about 11 am that day; that the black eco-bag at the 1/F staircase belonged to him.  Police conducted a search of the eco-bag and found the following inside it:-

(a)  A pair of scissors;

(b)  A roll of double-sided tapes;

(c)  A roll of transparent plastic film;

(d)  A paper cutter;

(e)  Two pieces of A4 paper;

(f)  A USB;

(g)  A photocopier; and

(h)  A document envelope containing:

(i)  8 HKID cards later confirmed to be false;

(ii)  6 bank cards consisting of 3 credit cards and 3 ATM cards; and

(iii)  5 HKID cards enumerated more particularly under Charge 1.

8.  Police found on Mr Chow’s person one mobile phone with a SIM card installed.

9.  Police arrested Mr Chow and cautioned him.  Under caution, Mr Chow said the black eco-bag belonged to him and he was only responsible for cutting cards.

10.  Subsequently on the same day, four cautioned VRIs were conducted during which Mr Chow said the following:-

(a)  He assisted a friend “Dai See Hing” (“Hing”)  whom he first met in Nam Cheong Park to cut cards; Hing gave him a piece of A4 paper with photocopy of 10 different ID cards and asked him to cut and paste them on hard cardboards (white card or bank card)  for a reward of $800;

(b)  He has assisted Hing to cut and paste HKID cards twice;

(c)  The first time was two weeks previously; Hing left a bag containing tools at the staircase of a building in Yee Kuk Street and Hing also left the reward of $800 at the switch box of the staircase;

(d)  The tools inside the said bag included a photocopier, a pair of scissors, a roll of double-sided tapes, bank cards and white cardboards;

(e)  He took those tools to the Guesthouse and rented a room at $450 per night;

(f)  He cut out the ID cards from the A4 paper(s)  and then pasted them on the white cardboards;

(g)  Upon completion, he placed the tools and the cards outside the Guesthouse or the refuse collection point at Yee Kuk Street pending collection by Hing;

(h)  After deduction of room charge, he received $350 as reward;

(i)  On the second occasion, he rented Room 3A at the Guesthouse at around 1000 hours on 2 August 2022; Hing also placed the black eco-bag containing similar tools at the staircase of a building at Yee Kuk Street;

(j)  There were among other things the items found by the police from inside the bag and some blank white cardboards;

(k)  He was instructed to paste the copy of identity cards on the white cardboards or the bank cards inside Room 3A; he obtained $350 reward after deducting room charge;

(l)  He did not know how Hing obtained the 6 bank cards, who the holders of those 6 bank cards were, or whether the 6 bank cards were valid or invalid;

(m)  The document envelope containing the 5 HKID cards were placed inside the photocopier which was placed inside the black ego-bag by Hing;

(n)  He did not know how Hing obtained the 5 HKID cards, who the holders of those 5 HKID cards were, or whether the 5 HKID cards were genuine or not;

(o)  He made the 8 false HKID cards; he did not know the persons whose particulars appeared on the false HKID cards; he cut the copy of the 8 ID cards from 3 pieces of A4 paper using the pair of scissors in the black eco-bag; he then pasted them on hard cardboards with the double-sided tapes and the transparent plastic film inside the black eco-bag; he did not know how Hing obtained those HKID card copies or whether the information thereon was genuine; and

(p)  Save for the USB, the paper cutter and the photocopier, he had used all the tools provided by Hing for making false HKID cards.

11.  A forensic scientist at the Government Laboratory examined the 5 HKID cards and confirmed them to be genuine.  All 5 HKID cards have been reported lost and were hence invalid.

12.  Of the 8 false HKID cards, only 7 of them contained legible personal information.  Of the 7 sets of personal information including the photo portrait, 6 of them were confirmed by the Immigration Department to be genuine information.  The Immigration Department also confirmed the genuine HKID cards relating to 5 of those 6 sets of personal information were still valid; the remaining genuine HKID card was invalid because the holder has already passed away.

13.  All 6 bank cards were confirmed to be genuine bank cards.

14.  CCTV of the Guesthouse captured the following:-

(a)  Mr Chow entered the Guesthouse at around 2017 hours on 2 August 2022 and checked into Room 3A;

(b)  At around 0159 hours on 3 August 2022, Mr Chow left the Guesthouse; one minute later, he came back with a black eco-bag accompanied by another Chinese male; they entered Room 3A; at around 0208 hours, the Chinese male left Room 3A; and

(c)  At around 1116 hours on 3 August 2022, Mr Chow, carrying the black eco-bag, left the Guesthouse.

15.  Mr Chow was charged to the Magistracy on 4 April 2023.  On 16 May 2023, the magistrate transferred the case to the District Court and appointed Mr Chow to appear before the District Court on 6 June 2023.  On that day, the case was further adjourned to 1 August 2023 with Mr Chow being released on court bail.

16.  On 1 August 2023, Mr Chow failed to appear; the court issued a warrant of arrest against him.  At about noon on the next day, Mr Chow was intercepted by the police in Sham Shui Po; his wanted status was unveiled.  Under caution, Mr Chow said he got the time of the hearing wrong so he did not attend court.

17.  Mr Chow admits that he did not have lawful authority or reasonable excuse to be in possession of the 5 HKID cards particularized under Charge 1.

18.  Mr Chow also admits that he did not have reasonable cause to have failed to surrender to custody as had been appointed by a court.

Criminal record

19.  Mr Chow has 15 previous convictions 8 of which were related to offences of dishonesty.  His last conviction, one of attempted theft, was recorded in November 2022, for which he was sentenced to 3 months’ imprisonment.

Antecedents

20.  Mr Chow is aged almost 37 (35 at the time of the main offences in this case), educated to F3 level, was working as a cleaning worker at the time of the main offences.  Mr Chow is a divorcee and he was living alone in Sham Shui Po.  Mr Chow was last discharged from prison on 27 January 2023 ie about 6 months prior to the main offences in the present case.

Mitigation

21.  Mr Samson Hung of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chow.  The following is a summary of the mitigation submissions.

22.  Prior to present remand, Mr Chow was living at accommodation arranged by The Society of Rehabilitation and Crime Prevention.  He was then working as a cleaner handling household garbage for others and earning about $1,500 a month.

23.  In relation to Charge 4, Mr Chow had no intention to abscond.  He simply made a mistake about the date of the mention hearing.  His version under caution is consistent.

24.  Mr Hung referred to HKSAR v Li Po Ying, CACC 105/2002, and HKSAR v Sun Po Tak, DCCC 332/2021 in relation to the starting points for Charges 1 to 3 herein.

25.  Mr Hung referred HKSAR v Lo Kam Fai [2016] 2 HKLRD 308 in relation to what percentage of discount ought to be given to Mr Chow for indicating his guilty plea slightly late.

26.  Mr Hung submitted that insofar as Charge 2 is concerned, the conspiracy involved was not as well-planned and its scale of operation was not as large as the ones in Li Po Ying and Sun Po Tak.  He submitted that there is no evidence that the false identity cards in the present case were used in connection with other crimes; that no financial loss was caused to anybody although he accepted that forgery of identity cards by itself is a serious offence.  Mr Hung further submitted Mr Chow was not the mastermind behind the scheme.

27.  Mr Hung submitted that the offence in relation to possession of equipment under Charge 3 was committed in pursuance and as a consequence of the conspiracy to forge a document under Charge 2.  Accordingly, Mr Hung invited the court to impose concurrent sentences under those two charges as they form one single transaction.

28.  As regards Charge 4, Mr Hung submitted Mr Chow made an inadvertent mistake about the hearing date; the fact that he was re-arrested the very next day caused minimum delay to the court process; that there was no fixing of trial dates.  Consequently, Mr Hung submitted, the present case justifies discounts outside the usual range of 20% to 25%.  In any event, Mr Hung continued, Mr Chow should be entitled to the usual 1/3 discount for his timely guilty plea to Charge 4.

29.  Mr Hung reminds the court to apply the totality principle.

Sentence

30.  Considering the out-of-the-ordinary circumstances pertaining to Mr Chow’s absence from court on 1 August 2023 and his speedy re-arrest the next day, I will grant him the full 1/3 discount in sentence for Charges 1 to 3 despite his slightly late indication of pleas.

31.  For possession of identity card relating to another, the maximum penalty is a fine of $100,000 and imprisonment for 10 years.  The usual sentence on a plea of guilty for someone who has not used or displayed the identity card to cover up his true identity is 12 months’ imprisonment.

32.  Mr Chow was not in possession of one but was in possession of 5 identity cards.  This is an aggravating factor as the scope for misuse has increased by five-folds (inclusive).  As such, I feel justified to adopt a sentence after plea (but before other mitigation)  of 16 months’ imprisonment.

33.  The maximum penalty for conspiracy to forge instruments is 14 years’ imprisonment.  There are no sentencing guidelines where the contemplated forged instruments are HKID cards.  A substantial length of prison term is invariably appropriate.

34.  In Mr Chow’s case, the conspiracy offence lasted two weeks involving two overt series of acts of actual forgery.  A total of 18 forged HKID cards were made.  Mr Chow received a total reward of $700 for his labour.  I have seen photos provided by the prosecution (since returned)  of the 8 forged identity cards that were seized.  They were coloured products and looked quite genuine. Considering the above factors and the scope of misuse to which the large number of forged identity cards may be put, I adopt an initial starting point of 3½ years’ imprisonment.  Mr Chow has a long record of dishonesty convictions and he was only last released for one of them some 6 months prior to his present immigration and forgery offences.  I will enhance his starting point by 3 months.

35.  For possession of equipment for making false instruments, the maximum penalty is 14 years’ imprisonment.  There are no sentencing guidelines.  A substantial term of imprisonment is the norm.

36.  Here, the equipment concerned is of workshop scale.  I will adopt in Mr Chow’s case a starting point of 2½ years.  For his bad criminal record, I will enhance the starting point by 3 months.

37.  For the offence subject of Charge 4, the maximum penalty is a fine and 12 months’ imprisonment.  The usual starting point is 6 months’ imprisonment. In Mr Chow’s case, because of the brevity of the absence, I will take a lower starting point of 4½ months.  For his timely plea, he shall be entitled to the customary 1/3 discount in sentence.

38.  There are no other mitigating factors of weight to justify any further discount in any of the sentences.

39.  Mr Chow has said little about how the genuine HKID cards were going to be used, much less that they were to be used for making forged identity cards. Consequently, there is no basis to say that the possession of HKID cards offence is part and parcel of the forgery offences.  Subject only to totality, the sentence on Charge 1 ought to be served consecutively.

40.  I tend to agree with Mr Hung that the two forgery offences subject of Charges 2 and 3 can be seen to form one criminal activity though one aggravates the other in terms of culpability.  I will allow partial concurrency of sentences even before considering totality.

41.  The sentence on Charge 4 ought in principle to be served consecutively, subject only to totality.

42.  I will consider and apply the principle of totality before arriving at the final aggregate sentence.

(Mr Chow, please stand)

43.  On Charge 1, the sentence is 16 months’ imprisonment.

44.  On Charge 2, the sentence is 30 months’ imprisonment.

45.  On Charge 3, the sentence is 22 months’ imprisonment.

46.  On Charge 4, the sentence is 3 months’ imprisonment.

47.  I order that 3 months of the sentence on Charge 3 is to run consecutively to the sentence on Charge 2.  This forms the Group A sentence of 33 months’ imprisonment.

48.  I further order that 2 months of the sentence on Charge 4 is to run consecutively to the sentence on Charge 1.  This forms the Group B sentence of 18 months’ imprisonment.

49.  Lastly, I order that 10 months of the Group B sentence is to run consecutively to the Group A sentence reaching a final sentence of 43 months’ imprisonment.