HKSAR v. MAROOF ASHAR AND OTHERS

DCCC 434/2023

[2024] HKDC 261

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 434 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  There are altogether 6 Defendants in this case. The present proceedings only concern the third to the sixth Defendants (D3 to D6).

2.  D4 pleaded guilty to a charge of “Possessing false instruments” (Charge 2)  while D3, D5 and D6 pleaded guilty to a charge of “False imprisonment” (Charge 3).  In addition, D6 also pleaded guilty to a charge of “Conspiracy to make false instruments” (Charge 1).

Summary of facts

3.  Mr KWOK (“PW1”), the victim in the case, was 16 years old at the time of the offence(s).  In August 2022, he got acquainted with D6 while working as a waiter in Tsuen Wan area.

Charge 1

4.  On 1 September 2022, D6 contacted PW1 via WhatsApp and asked if he would be interested in making a fake student card for a tertiary institution, which could be used to make purchases at a discounted price at the Apple store.  The products would then be resold and PW1 would be paid HK$1,500 per day.  PW1 agreed and supplied D6 with his personal details and photograph.

5.  On 12 September 2022, D6 contacted PW1 via WhatsApp telling him to collect his fake student card at Yau Ma Tei.

Charge 2

6.  As instructed, PW1 went to a convenience store near Yau Ma Tei Police Station at around 11:45 pm on 12 September 2022 to collect his fake student card.  D4 turned up and asked PW1 if he was there to collect his card.  When PW1 answered in the affirmative, D4 asked for HK$2,500. During their discussion, PW1 called D6 to clarify the matter.

7.  At that juncture, a team of Police officers intervened.  Upon search, D4 was found in possession of a total of 45 forged student cards of the City University of Hong Kong, including 15 identical forged cards in the names of PW1, one Mr Ho and one Mr Tong respectively.  D4 was arrested.

Charge 3

8.  At around 00:45 am on 13 September 2022, D6 called PW1 and told him to meet up at Manly Commercial Building in Mongkok.  PW1 complied and arrived at around 1:30 am.

9.  D6 appeared and took PW1 to a unit on the Second Floor of the Building. There, D5, whom PW1 did not know, accused PW1 of tipping off the Police resulting in a huge loss to his “company” and the arrest of one of their men.  D5 offered PW1 three options on how to settle the matter, namely, he could either pay, have himself chopped or have his family chopped.  Out of fear, PW1 chose to compensate D5.  Whilst the amount of HK$1 million was initially demanded, D6 acted as a “mediator” and D5 eventually agreed to accept a payment of HK$500,000.

10.  At around 2:00 am on 13 September 2022, D5 and D6 took PW1 down to the Ground Floor of the Building, where two Pakistani males, D3 and another person, joined in guarding PW1.

11.  The group of five took a taxi to Kam Shan Country Park.  They arrived at around 3:00 am and D5 told PW1 to make calls to raise funds.  PW1 therefore made multiple calls to his mother (“PW2”)  and his paternal uncle (“PW3”).  One of the PW1’s captors also threatened PW3 that PW1 could die if he could not come up with HK$1 million.  In the course, D3 and another person had placed their right hands around PW1’s neck to prevent him from leaving.

12.  Upon receiving PW1’s calls, PW2 and PW3 discreetly reported the matter to the Police.

13.  At around 6:30 am, PW1 was taken down the hill by D3, D5, D6 and another person.  They then took two taxis to Sham Shui Po where they were joined by a third Pakistani male.  PW1 was guarded by D3 and two other persons.

14.  Thereafter, the group of six travelled to Tsuen Wan in two taxis, with PW1, D5 and D6 on one, and D3 and two other persons on the other.  Arriving at a restaurant in Tsuen Wan at around 7:00 am, the group had breakfast.

15.  After breakfast, the group left the restaurant.  D5 and D6 boarded a Tesla private car whereas PW1 continued to be guarded by D3 and two other persons.  When PW1, D3 and two other persons boarded a taxi, they were intercepted by the Police.

16.  D3 was arrested on board the abovementioned taxi.

17.  D6 was arrested at her residence on 15 September 2022.  She claimed that it was D5 who had asked her to accompany PW1.

Cautioned statements

18.  In the video-recorded interview(s)  conducted by the Police, D3, with the assistance of an Urdu interpreter, stated inter alia, that: -

(i)  He was called by D5, whom he had known for only two days, in the small hours of 13 September 2022 and asked to offer “help”. D5 did not explain to him the type of “help” required. He called one of his friends and they went to join D5 as well as a male and a female in Mong Kok;

(ii)  After fetching some food, the group proceeded to the “Mountain of Monkeys”, where they had food and chatted; and

(iii)  Later, they left the “Mountain of Monkeys” and went to Sham Shui Po. He also called his friend to come along to act as an interpreter. After having breakfast in Tsuen Wan, D5 told D3 to take PW1 home as they all lived in the Sham Shui Po area.

19.  In the video-recorded interview(s)  conducted by the Police, D6 stated, inter alia, that: -

(i)  It was D5 who had promised her a reward of HK$2,000 per day for forgery, and she invited PW1 to make purchases at student price by offering a reward of HK$1,700 per day. She would keep HK$300 as commission;

(ii)  She acquired PW1’s personal details and photograph and forwarded them to D5. She knew that such student card “should be fake”;

(iii)  When PW1 was collecting the fake student card, the Police intervened and D5 suspected that PW1 had been a “grass”. D5 called PW1 out for a discussion and D6 was there to keep PW1 company;

(iv)  In the early hours of 13 September 2022, D6 met up with D5 and PW1 in Mong Kok. D5 and PW1 discussed the matter. Later, two Pakistani friends appeared and they proceeded to an unknown hilltop where the group had a chat and shared food;

(v)  During the three hours’ stay at the hilltop, the others had been talking to each other. She knew that D5 was angry with PW1 about the student card matter and that it would be settled with money; and

(vi)  Later, they proceeded to Sham Shui Po where a Pakistani friend joined in. After having breakfast in Tsuen Wan, D6 left with D5 in a Tesla.

Previous convictions

20.  D4 to D6 have no previous convictions.

Background and mitigation

D3

21.  D3 is now aged 22. He is a Pakistani national and a Form 8 holder in Hong Kong.  His family members are all in Pakistan.

22.  In mitigation, his Counsel Mr Hotten submited that given D3 had only put his hand around the victim’s neck and escort him in a taxi, the sentence for the offence should be at the lower end of the scale.

D4

23.  D4 is now aged 24.  He is single and lived with his 55 years old mother and three brothers.  He received education up to Form 6 and started working as a casual worker in 2023.

24.  His parents in their mitigation letters described D4 as a filial son.  They told the court that their son committed the offence out of his desire to help easing the financial burden of the family.  D4’s supervisor at work, Madam Chan, also wrote to the court and praised him as a responsible and reliable employee.  In addition, his visiting Pastor at Stanley Prison, Mr Lee, testified in his letter about D4’s remorseful attitude towards his offence.

25.  Today, I have been given a letter written by D4 himself.  D4 expressed in his letter his regret for committing the offence. He had decided to forego his right to bail because he wanted to shoulder the responsibility of his own wrongdoing.  He asked the court to be lenient and promised to start a new leaf in life.

26.  In mitigation, his Counsel Mr Yim submitted that, while possession of fake student cards was a criminal offence, the impact on society was relatively minor  He urged the court to consider that there was no evidence in the case pointing to D4’s involvement in other more serious offences.

27.  All in all, they asked for leniency on behalf of D4.

D5

28.  D5 is now aged 23.  Prior to the incarceration, he lived with his parents and elder brother in a public housing unit.  He received education up to Form 6 and thereafter started taking up employment as a cargo handler, and later, as a workman.

29.  In his mitigation letter, D5 attributed his wrongdoing to the influence of undesirable peers and his desire to make some quick money. He expressed his remorse and promised to mend his way.  His mother blamed herself in the mitigation letter for not spending enough time guiding D5 through his adolescence.  She also told the court about her being diagnosed with breast cancer in 2012 and the hard time she had had in battling with the disease.

30.  In addition, there are 2 pastors writing mitigation letters for D5.  Both Pastor Wong and Pastor Ng expressed how D5 had reflected upon himself and regretted for his foolish acts.  They also witnessed the positive changes brought about by D5’s Christian faith.

31.  His Counsel Ms Ng pointed out that D5 had nothing to do with the “false student cards” case and was just being told to take follow-up action.  Ms Ng said it was due to D5’s immature and misguided arrogance that caused him to take up the role as the “speaker of the group” in committing the offence.

32.  In sum, they all asked the court to impose a lenient sentence on D5.

D6

33.  D6 is now aged 23.  She received education up to Form 4.  At the time of the arrest, she was taking on various part time jobs earning unstable income.

34.  She is single and lived alone prior to her arrest.  Her relationship with her mother and other siblings was distant.  Since her incarceration in September 2022, she has maintained regular correspondence with her family members and their relationship has improved.

35.  D6 expressed in her mitigation letter how sorry she felt about the mistakes she made and prayed for a lenient sentence to start afresh.

36.  In mitigation, her Counsel Ms Lee told the court that D6 had been promised a reward of around HK$2,000 to HK$2,500 and her involvement in Charge 1 was limited to introducing PW1 to D5 for making fake student cards.  Ms Lee emphasized that D6 was not involved in the actual making of the fake student cards.

37.  As to Charge 3, Ms Lee said D6 merely arranged a meeting between D5 and PW1 to discuss the issue of compensation following the arrest of PW1.  In sum, D6 merely attended the meeting as a “mediator” and did not use any force or violence in detaining PW1.

Sentencing considerations

38.  D4 to D6 had all attained the age of 21 at the time of the offence(s). They are all first offenders and I will bear this in mind in sentencing.

Charges 1 and 2

39.  The maximum sentence for making false instrument under section 71 of the Crimes Ordinance is 14 years’ imprisonment.  The same applies to the offence of using a false instrument under s 73 and the offence of possessing a false instrument under section 75.

40.  Ms Lee (for D6)  citeed the case of HKSAR v Mah Kah Loon, CACC 209/2013, where a Malaysian national pleaded guilty to four counts of “Using a false instrument” (a forged credit card)  and 1 count of “Possessing a false instrument”.  He was sentenced to 2 years’ imprisonment for each of the “Using” counts and 1 year for the “Possession” count.  The sentences have not been disturbed by the Court on Appeal.

41.  Ms Lee also referred to the case of HKSAR v Chow Alice Shun Ling, DCCC 173/2011 where the Defendant pleaded guilty to one count of “Possessing False Instruments”, namely 3 forged credit cards.  The Sentencing Judge adopted a starting point of 3 years and reduced it to 2.5 years as the Defendant was not playing a major role in the operation.

42.  Mr Yim (for D4)  on the other hand suggested the court to consider a starting point of 18 to 22.5 months adopted in cases involving false immigration documents or Construction Industry Safety Training Certificate (known as the “Green Card”).

43.  In R v Chan Sui To and another [1996] 2 HKCLR 128, the Court of Appeal set out factors to be considered in credit card frauds.  They include: -

(i)  the size of the operation;

(ii)  the planning that had gone into perpetrating the fraud;

(iii)  whether there is an international dimension; and

(iv)  whether the accused played a major role.

44.  The factors were not intended to be exhaustive but do provide valuable assistance to the court.  Although the present case involves fake student cards other than forged credit cards, I find these factors equally useful as sentencing considerations.

45.  In regard to Charge 1, I bear in mind that D4 was delivering the fake student cards on instruction of others.  I also note that, unlike in credit card frauds, the potential loss brought about by these fake student cards would be limited to the discount offered by the Apple Store upon purchase.  Moreover, there was no international element involved.  While there is not much evidence as to the degree of planning/complexity involved, the number of fake cards (a total of 45)  found on D4 does give an idea as to the size of the operation, which, in my view, cannot be said to be small.

46.  Given the culpability of D4 is confined to the possession of the fake student cards for delivery, I considered a starting point of 2 years’ imprisonment appropriate.  Taking into account D4’s timely plea of guilty, the sentence is reduced to one of 16 months’ imprisonment.

47.  As to Charge 2, while it is a conspiracy charge, the factors in Chan Sui To are equally applicable.  Apart from what I have considered above, I also take into account the short duration of the conspiracy, ie, 12 days and that only PW1 was recruited by D6 to take part in the conspiracy. In the end, I find a starting point of 2 years appropriate and reduce the same to 16 months’ imprisonment to reflect D6’s timely plea of guilty.

Charge 3

48.  The maximum penalty for the common law offence of false imprisonment on conviction upon indictment is that of imprisonment for 7 years and a fine.  There is no tariff for sentencing as the offence can occur in a wide variety of circumstances.

49.  Ms Ng (for D5)  in her helpful written submissions refered to the following passage of Spencer J in the English case of R v Miller (Leon Drummond) [2021] EWCA Crim 1863, identifying the relevant factors to be taken into consideration in assessing the culpability of the offender of the offence of false imprisonment.

“14. It is accepted that in assessing the gravity of cases of false imprisonment, the relevant factors will include the length of the detention, the circumstances of the detention, including location, and any method of restraint, the extent of any violence used, the involvement of weapons, whether demands are made of others, whether threats were made to others, the effect on the victim and on others, the extent of any planning, the number of offenders involved, whether there was the use of torture or humiliation, whether what was done arose from or in further of previous criminal behaviour, and any particular vulnerability of the victim whether by reason of age or otherwise.”

50.  Ms Ng further referred to the case of HKSAR v Tran Van Tu & Another DCCC 105/2022 where a joint charge of false Imprisonment was preferred against two Defendants for detaining the victim against his will for 4 days for an outstanding debt of HK$1.35 million.  The victim sustained abrasions to various parts of his body while attempting to flee and was beaten up.  The Trial Judge adopted a starting point of 2.5 years’ imprisonment for each of the Defendants and enhanced the same to 3 years in light of their Form 8 holder status.

51.  Ms Ng submitted D5 was less culpable than the Defendants in Tran Van Tu as: -

(i)  the duration of detention against the will of PW1 was only about 5.5 hours;

(ii)  the locations of detention were mostly accessible by the public;

(iii)  PW1 was not restrained by any device;

(iv)  no physical violence was exerted upon PW1;

(v)  no weapon was used;

(vi)  the planning was short of sophistication;

(vii)  there was no triad background; and

(viii)  there was no use of torture or humiliation.

52.  Given the circumstances, Ms Ng urged the court to consider a starting point of less than 2.5 years for the offence.

53.  To assist the court, Ms Lee (D6)  also invited the court to look at the facts in HKSAR v Chung Soo Foon, DCCC 579/2014 where the victim was imprisoned for around 4 hours during which he was tied up and blind-folded inside a taxi.  He was then driven to a quiet location where the Defendant demanded money from him.  The Defendant subsequently took HK$9,500 from the victim’s bank account via ATM before releasing him. In sentencing the Defendant, the Sentencing Judge adopted a starting point of 3 years’ imprisonment.

54.  Ms Lee’s submitted that although PW1 was detained for a few hours, he was not subject to any physical violence and the facts of the present case were far less serious than that of Chung Soo Foon.

55.  Having carefully considered the facts of the case, the authorities referred to by Counsel and the submissions made on behalf of D5 and D6, I agree that the Defendants in both Tran Van Tu and Chung Soo Foon were more culpable in the commission of the offence. I also accept the extenuating circumstances put forward by Counsel for D5 and D6.

56.  However, I have not overlooked the following aggravating features in the case, namely: -

(i)  there was an unwarranted demand of HK$500,000 from PW1 and his family members;

(ii)  threats of violence were made to both PW1 and his family members;

(iii)  a total of 5 persons were involved in the offence;

(iv)  the incident arose out of the illicit making/intended using of fake student cards; and

(v)  PW1 was only 16 years old at the time.

57.  Given the overall circumstances of the case, I find that a starting point of 30 months’ imprisonment is appropriate.

58.  Although D3 only came into the picture at a later point of time, he played an active role in guarding and escorting PW1 to prevent him from leaving.  As to D5 and D6, while D5 acted as the “speaker of the group” and D6 played the role of a “mediator”, I am of the view that they were complicit in extorting money from PW1 and were equally culpable in the offence.

59.  I adopt the same starting point for D3, D5 and D6.  Giving them the usual one-third discount for their timely plea of guilty, they are each sentenced to 20 months’ imprisonment for the offence.

Enhancement of Sentence (D3)

60.  D3 is a Form 8 holder.  I enhanced the sentence by 6 months to 26 months’ imprisonment for the offence.

Sentence

61.  The sentences on each of the charges are therefore as follows:-

(1)  D6 – 16 months’ imprisonment;

(2)  D4 – 16 months’ imprisonment;

(3)  D5 and D6 – 20 months’ imprisonment; D3 – 26 months’ imprisonment.

Totality principle (D6)

62.  Considering the issue of totality and the correlation between Charges 2 and 3, I order that 4 months of the sentence on Charge 1 to run consecutive to that of Charge 3, making a total of 24 months’ imprisonment.