HKSAR v. ALBERT AERUTHAYAN VINCENT PAUL

DCCC 456/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.456 OF 2012

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

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

Reasons for Sentence

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

1.  The defendant pleaded guilty to one charge of Possessing false instruments, contrary to s.75(1) of the Crimes Ordinance, Cap.200.

Facts

2.  The defendant is a Malaysian passport holder. He entered Hong Kong on 29^th March 2012 as a visitor. At around 4:50pm on the day of the defendant’s entry, he was spotted acting furtively by Police officers patrolling the TST area. The defendant was intercepted for enquiries and was searched.

3.  Upon search, 5 credit cards in the name of Vincent Pan were found on his person. The names on the cards are different to the name of the defendant as shown on his passport. The defendant claimed that the cards were given to him by his friend in Malaysia. The defendant was then arrested for the possession of false instruments.

4.  In the subsequent record of interview, the defendant admitted under caution that the credit cards were forged credit cards. He claimed that a few days before he came to Hong Kong, the said friend in Malaysia asked if he wanted to make some quick money. The defendant agreed. The friend then made the 5 forged credit card for the defendant and delivered them to the defendant’s home. The defendant then took a flight to Hong Kong and arrived on 29^th March, planning to use the 5 credit cards for purchases. The items purchased would have been resold to make some money. The defendant was arrested before he could carry out his plan.

5.  The 5 credit cards were examined by Government Forensic Scientist and confirmed to be forged cards.

Previous convictions

6.  The defendant has a clear record in Hong Kong.

Mitigation

7.  The defendant is 23 and born in Malaysia. I am grateful for Mr. Ng’s detailed submissions on mitigation. There are however, as Mr. Ng rightly conceded, nothing exceptional in the defendant’s circumstances. As with most other crimes, the defendant committed the offence out of financial need.

Sentence

8.  The maximum sentence under s.75(1) is that of 14 years’ imprisonment.

9.  In the case of R v Chan Sui To & another, CACC 115/1996, the Court of Appeal gave some guidance in sentencing credit card fraud cases:

“30. Allowing for the different facts and the varying degrees of culpability, it is impossible to formulate a set of principles of sentencing from those decisions. We think however it would be helpful to the courts if they were guided by some criterion. We would therefore suggest that an accused who plays an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of five to six years after trial. Sentences may be adjusted upwards or downwards according to circumstances.”

10.  In the case of HKSAR v Tu I Lang, CACC 464/2006, the applicant, a Taiwanese national, arrived in Hong Kong the day before he attempted to buy a mobile phone using a forged credit card. The shop assistant was suspicious of the card and called over Police officers who were in the shop. They found the applicant’s passport was in a name different to that on the credit card. The applicant was then searched and another two forged credit cards were found on his person.

11.  Apart from the defendant in our present case not being able to get to the stage of using the credit cards, the facts are very similar. The Court of Appeal considered various cases including Chan Sui To and found that,

“9. …Small scale credit card offences cannot be subjected to strict guidelines. That is because the facts of such offences can vary significantly in a number of ways, the number of cards possessed or used being perhaps the most obvious factor.”

12.  The Court of Appeal then stated that,

“10. Where the facts of the offence point to a small unsophisticated operation, involving only one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of three years’ imprisonment or less would be appropriate.”

13.  Although the applicant came to Hong Kong just a day before committing the offences, the Court of Appeal found that there was insufficient evidence to prove that there was an international dimension to the case.

“11. While some suspicion must attach to the arrival of the applicant in Hong Kong only the day before these offences were committed the facts of the present case, as accepted by the judge, reveal only a small scale operation with no international dimensions and no other aggravating factors.”

14.  The Court then went on to find that for the possession of the 2 forged credit cards found on the applicant, an appropriate starting point was 3 years’ imprisonment.

15.  Credit cards frauds are serious offences, much of the world now rely on electronic credit transactions. If this system is breached, the extent of losses will be immense. Furthermore, discovery of the frauds are usually difficult and require a vigilant credit card service company as well as the cardholder being diligent in the checking of statements. More often than not, all that the banks can do when a transaction based on a forged credit card is made would be to discharge the real cardholder from liability, without apprehending the actual culprits. Although the defendant did not actually get to use the 5 forged credit cards, it is the potential of loss that must be taken into consideration when sentencing.

16.  Having considered the circumstances of the case, I find that what we have here is a small scale credit card fraud operation. I find however that there is enough evidence to suggest that there is an international dimension to the case. The forged cards were given to the defendant in Malaysia and he brought them over to Hong Kong. Although the defendant did not say how he would be using the money from the resale of the goods to be purchased, it must be an irresistible inference that some money will be going back to the defendant’s ‘friend’ in Malaysia with the defendant keeping a portion. In fact, I am assisted by Mr. Ng in his mitigation where he disclosed that the defendant would have kept 10% of the sales proceeds.

17.  I find that an appropriate starting point in this case is that of 3 years and 3 months’ imprisonment, given that the number of credit cards involved is only slightly more than that in Tu I Lang. The reason why there is an additional 3 months in the sentence is the international element that I find as an aggravating factor. The defendant is therefore sentenced to 26 months’ imprisonment upon discounting the sentence for his plea of guilty.