HKSAR v. LEE TSUNG LIN

CACC 53/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 53 OF 2002

(ON APPEAL FROM DCCC 607/2001)

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J U D G M E N T

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Hon. Seagroatt, J. (giving the judgment of the Court):

1. This Applicant is one of four Defendants who appeared before his Honour Deputy Judge Mierczak on 10 January of this year. He was part of a Taiwanese gang of fraudsters who came to Hong Kong on 7 March last year to obtain goods and services by using a large number of forged credit cards. He pleaded guilty to 9 counts of using a false instrument, that is, a forged credit card. These were counts No. 1, 4, 7, 8, 20, 21, 22, 23 and 24. He obtained a range of goods and services thereby. He also pleaded guilty to 3 other counts. Count 28 related to his possession of 3 false instruments, namely, forged credit cards, and Count 29 to 54 false instruments also forged credit cards. The last count, Count 30, concerned his possession of equipment for making forged credit cards being an encoder, a transformer and an adaptor.

2. A Summary of Facts agreed by the Applicant who was represented by solicitors, illustrated the nature of the concerted fraudulent activity. The gang commenced their activity on arrival at Hong Kong Airport with a shopping spree. They had a particular desire for Louis XIII brandy at HK$6,800 a bottle and video cameras at a price in the region of HK$16,000 and also obtained quantities of United States dollars from Thomas Cook Currency Exchange.

3. As far as this Applicant was concerned, he obtained two bottles of Louis XIII brandy, a video camera, some cigarettes and US$1,000 by using 3 different forged credit cards. The gang then moved off to the Sheraton Hotel where they booked rooms and purported to pay deposits using forged credit cards. The shopping spree then continued with this Applicant buying goods from Gucci in Pacific Place. He then booked in at the Holiday Inn Golden Mile and on one occasion obtained a cash advance from the hotel. Having done so, he then went to Bally shop in Nathan Road and bought another pair of ladies' shoes for a woman who accompanied him and a leather belt for himself.

4. Earlier some of the gang had flown to Guangzhou. They now returned and checked in at the Sheraton Hotel as well purporting to pay the deposit with a forged credit card. That night police officers, having been observing various hotels and in particular this Applicant and another, since early afternoon, arrested all four Applicant in the hotel rooms. From the room occupied by this Applicant, the 54 forged cards and the encoder in particular were recovered. Fifteen of the 54 forged cards were embossed in his name. Three more forged cards were found in his wallet.

5. In a statement to the police and in a video recorded interview, this Applicant admitted the offences. He said he had been sent to Hong Kong by a Taiwanese by the name of Siu Shing to obtain the goods. The encoder, he explained, was to enable him to follow Siu Shing's instructions to encode the forged cards, 49 of which had yet to be encoded. He later attended an identification parade at which he was identified by one of the employees of the Horizon's Duty Free at the airport. He declined to attend a further parade.

6. The total value of the goods and services obtained by these Defendants in less than one day amounted to a little over HK$205,000. It was urged in mitigation in the lower court that this Applicant had no previous conviction in Hong Kong. Given the circumstances of these offences, that counts for little if anything. It was also suggested that he and his co-Defendants were in effect couriers and at the bottom end of the scale of responsibility or culpability. Given the nature of the fraud, its planning and execution, that seems unlikely. This Applicant in any event had a large reserve of forged cards which he was in a position to encode by means of equipment he had with him. He could properly be regarded as the provider of the resources to extend the campaign of fraud. The only valid point in mitigation was the fact that he pleaded guilty to the offences on the first day of trial having admitted them all in the interviews. Given the circumstances surrounding the arrest and the extensive material in the possession, it is difficult to see how he could sensibly have done otherwise.

7. The learned Deputy Judge had regard to the Court of Appeal decision in The Queen v Chan Sui-to & Another [1996] 2 HKCLR 128 which set out some factors for consideration in the approach to sentencing, specifically at p. 131 F-H:

(1) the size of the operation, e.g. whether it involves large sums of money, a number of persons or forged credit cards;

(2) the planning that went into the perpetration of the fraud, whether it was elaborate or simple, whether technical skills were used and to what extent;

(3) whether there was an international dimension;

(4) whether the accused played a major role, e.g. running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he was a mere cog in the wheel as a courier or a custodian or keeper;

(5) whether there was a plea of guilty.

8. This Applicant met all the criteria at the higher level. The circumstances of his case and the nature of his involvement were significantly more serious than of the main Defendant in that case and the Deputy Judge correctly identified and evaluated them. He imposed concurrent terms of imprisonment on all accounts for the offences of using the forged cards. He took a starting point of 3 1/2 years reducing the sentence by one-third to 2 years 4 months.

9. For the possession of the three forged credit cards, he applied the same formula. Count 29 related to the possession of the 54 forged cards. This epitomised a planned campaign of fraud. The starting point decided by him was 7 1/2 years and, applying a discount of one-third, reached 5 years. On the final count of possessing the equipment, he took a starting point of 7 years and discounted this to 4 years 8 months. The overall sentence at this stage was 5 years. He was then persuaded, correctly in our view, to enhance the sentence by virtue of s. 27 ss. 2 of the Organised and Serious Crimes Ordinance. Cases such as these credit card frauds are prevalent. They strike at the root of commercial trust and stability. The need for a particular deterrent element in the sentence was called for.

10. He, in fact, enhanced the sentences by 25% to take into account the gravity, prevalence and effect upon the community. Accordingly all the concurrent sentences were increased by 25%. The effect was that the sentence for this Applicant on Count 29 was increased to 6 years 3 months. Mr. H. Y. Wong on behalf of this Applicant argued that the starting point for the sentences on Counts 29 and 30, 7 1/2 years and 7 years respectively, was too high in the light of Chan Sui-to referred to earlier and HKSAR v Ng Swee Thiam [2000] 2 HKLRD 772.

11. Dealing with Chan Sui-to where the court reduced a 6 years sentence to one of 4 years the original starting point having been reduced from 8 to 9 years down to 6 years, there was a number of significant differences in the circumstances of that case. The case before us has a clear international dimension. The size of the operation was far greater and had the potential to be very extensive indeed. There was elaborate planning, a gang was recruited, it was a major operation. We have little difficulty in saying that case is helpful for its identification of the factors for a sentencing judge to consider, but it is significantly different on its facts.

12. In HKSAR v Ng Swee Thiam, a Court of Appeal presided over by my Lord, the Vice President, the three Defendants before that court were involved in a very serious fraud relating to credit cards. The first Defendant pleaded guilty to two offences of possessing equipment for making false instruments, namely, forged credit cards, four offences of possessing false instruments and one of possessing a forged travel document. He was sentenced to a total of 10 years' imprisonment.

13. The second Defendant in Ng Swee Thiam was convicted after trial of two offences of conspiracy to commit forgeries and two offences of possessing false instruments. He was sentenced to 9 years' imprisonment concurrently on the offences of conspiracy and 5 years on the false instrument offences, concurrently with each other, but with 3 years of that term to run consecutively to the 9-year term, thus totalling 12 years.

14. The third Defendant in that case pleaded guilty to one offence of possessing equipment for making false instruments, one offence of possessing a false instrument and one offence of making a false statement to an immigration officer. He was sentenced to a total of 6 years 6 months' imprisonment. They were all involved in the production of forged credit cards. Equipment and materials were found in premises occupied by the Defendants. One piece of equipment described as a Point of Sale unit, enabled such forged credit card transactions to be validated. The Court of Appeal had little difficulty in seeing the scale and nature of this operation as much more substantial than that in Chan Sui-to, in particular, it identified an "enormous potential for losses". The court after anxious consideration reduced the starting point for the offences to 10 years. That anxious consideration may well have reflected some reluctance in reducing the figure from 12 years to 10 years given that the maximum is 14 years and the features of that case came almost as close as they could to the ultimate sophisticated credit card fraud with a potential for untold losses.

15. As a consequence, the first Defendant in Ng Swee Thiam who had pleaded guilty to the offences involving the false instruments had his sentences reduced to a total of 6 years 8 months. The third Defendant had a starting point of 8 years imposed because his part in the conspiracy was related to one factory. What is particularly important in that case is that there was no application to enhance the sentences under the Organised and Serious Crimes Ordinance as there was in the case before us.

16. As far as this case is concerned, the Deputy Judge took a starting point of 7 1/2 years which was amply justified on all the facts. There is, therefore, no substance in the argument based on sentences in the other two cases. An original ground in this application was that the Deputy Judge should have deducted the one-third discount from his jurisdictional limit of 7 years, not from his starting point of 7 1/2 years, but that was rightly not pursued by Mr. Wong. The authority of direct relevance is that of the Court of Appeal in HKSAR v Li Yan [1998] 4 HKC 12. The Court held that where the appropriate sentence to be imposed after discount was 7 years or more, that is, at the limit of or in excess of his jurisdiction, the District Judge should give a further "meaningful" reduction in order to give some benefit for the plea of guilty. The same was to apply if the appropriate sentence was so near to 7 years that the reduction was not meaningful. What was meaningful, must be left to the sentencers but rarely would a reduction of less than one year be so considered. In that case a starting point of 9 years for two offences of robbery was regarded as excessive. A totality of 7 years was appropriate. A discount of one-third for the pleas was applied. The sentence of 15 months for the immigration offence was made consecutive; the total thus became 5 years and 11 months, a reduction of 13 months below the jurisdictional limit.

17. In the case before us as stated, the starting point was 7 1/2 years. The judge applied a discount of one-third bringing the sentence to one of 5 years. The reduction of two years below the 7 years limit was unarguably meaningful. Then the enhancement under the Organised and Serious Crimes Ordinance had to be applied. 25% was unobjectionable and was consistent with the applicant's solicitor's argument in the court below. The actual sentence was thus brought up to 6 years 3 months. That represented a reduction of 9 months from the jurisdictional limit that in our view was meaningful in the context of this case. It is also one of those cases which falls within the rare category referred to in Li Yan's case where a reduction of less than one year could be considered.

18. There is, therefore, in our view no basis for a further reduction and this application is dismissed.