HKSAR v. ONG LAND HUP

DCCC982/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 982 OF 2011

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Reasons for Sentence

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The Charges and the Facts

1.  The Defendant pleaded guilty before me to three charges of “using a false instrument” (charges (1) to (3)), and one charge of “possessing a false instrument” (charge (4)), contrary to sections 73 and 75(1) of the Crimes Ordinance, Cap. 200, respectively.

2.  The false instrument involved was one forged credit card.

3.  The Summary of Facts disclosed that in the afternoon of 21 July 2011, the Defendant was acting furtively near Telford Garden, Kowloon Bay. He was then stopped by the police for enquiries. Upon search, 1 forged credit card, 40 Wellcome Supermarket coupons, a few bottles of perfumes and 2 boxes of makeup were found on the Defendant’s person, together with a shop receipt.

4.  After the police had conducted investigation into the case, it was found that at around 1:00 p.m. on that day, the Defendant had used the forged credit card to purchase 20 coupons from the Wellcome Supermarket in Shatin Plaza. About half an hour later, he then used the same card to purchase another lot of 20 coupons from the Wellcome Supermarket in Tai Wai.

5.  Based on the shop receipt seized from the Defendant, the police also found out that the Defendant had used the same card at about 2:40 p.m. on that day to purchase perfume in the total sum of HK$3,270 from the Christian Dior Cosmetic Shop in Telford Plaza.

6.  When being interviewed under caution, the Defendant admitted that he was recruited by a male in Malaysia to come to Hong Kong to use the forged credit card to make purchases. He was promised 20% of the value of each transaction as his reward. The Defendant then departed Malaysia for Hong Kong on the same day. In the morning of 21 July 2011, the Defendant was told to collect the forged card from near a rubbish bin inside the Shek Kip Mei MTR Station. He signed on the card and he then followed the instructions given to him to conduct the various purchases.

Mitigation

7.  The Defendant is a Malaysian who has a clear record in Hong Kong. He is now aged 52 and has obtained a Diploma in Electronic Communications. However, the court was told that, at the time of his arrest, he was unemployed. Prior to that, the Defendant only had some odd jobs. He used most of that income for paying his rental while the rest was used on food. The Defendant is single. He is the only one who is responsible for looking after his 75-year-old mother. They have no other family members.

8.  In mitigation, it was said that the Defendant made full admissions when being interviewed by the police and he was fully co-operative. It was also submitted that the value of the goods involved was not great.

9.  In the Defendant’s letter to the court, he expressed his remorse and asked for a lenient sentence so that he could return to Malaysia to look after his mother as soon as possible.

Sentencing Considerations

10.  A number of factors have been identified in R v Chan Sui-to & Another [1996] 2 HKCLR 128 as being relevant in sentencing this type of credit card fraud. These include the size of the operation, the planning involved, whether there was an international dimension, and the role played by the Defendant. The sum of money involved, while being one of the relevant factors, is certainly not the most significant one.

11.  In the present case, although only 1 forged credit card was involved, I take as aggravating factors the following :

(a) The Defendant is a holder of Malaysian passport and he admitted deliberately coming to Hong Kong to commit these offences. People who come to Hong Kong to engage themselves in criminal enterprises must be deterred. A strong message must be sent out that Hong Kong is not a place for these criminals and foreigners who deliberately come to Hong Kong to conduct criminal activities will be dealt with severely.

(b) Judging from the facts of this case, that is, the oversea recruitment of the Defendant; the provision of a telephone sim card and octopus card for the Defendant to communicate with his contact person and to travel in Hong Kong; the leaving of the forged credit card inside the MTR station for the Defendant to collect; and the instructions given to the Defendant to make the various purchases within just about 2 hours, I have no doubt that it was a planned operation and that there was an organized syndicate behind the Defendant. I also have no doubt that the Defendant, having been recruited from overseas, must have a rough idea that it was not a small scale operation. Therefore, although the Defendant only had one card with him and he only acted as the “foot soldier” to make the purchases, it is clear he was fully aware that he was taking part in some syndicated fraud.

(c) The value of the goods involved in charges (1) and (2) was HK$2,000 each whereas that in charge (3) was HK$3,270. While these were not very huge sums, I cannot lose sight of the fact that the Defendant had been making successive purchases in different shops within just about 2 hours prior to being stopped by the police. I am sure that, if the Defendant had not been arrested, he would have continued using the card to obtain more goods, causing more losses to shops. In HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517, the Court of Appeal said that it was the potential for losses, rather than the actual loss, in relation to the fraudulent use of credit cards that was important in sentencing for this kind of offences.

12.  When considering the sentence in this case, I bear in mind the facts admitted and all the above. I also note the court has repeatedly said that in order to protect the integrity of our highly important credit card system, severe sentences are called for as a deterrent.

The Sentence

13.  In this case and, for the reasons mentioned above, I consider that a starting point of 3 years is appropriate in respect of each charge.

14.  Having taken into account the Defendant’s background and all that was said on his behalf in mitigation, other than his pleas, I find nothing which would warrant any further reduction in sentence.

15.  Although it was said that the Defendant was the only one who looked after his elderly mother in Malaysia, I notice from the Summary of Facts that the Defendant travelled to Hong Kong very frequently between May and July 2011. When asked about that, Ms. Yuen for the Defendant told the court that during those periods, the Defendant’s classmate would then help looking after his mother. In the circumstances, it would appear that the Defendant’s mother was rather used to the Defendant being away from her and it was certainly not the case that the mother would be left totally unattended and helpless if the Defendant was not with her. In any event, the Defendant should have thought long and hard before committing these offences and his family plight could not be of assistance to him in mitigation.

16.  3 years reduced by one-third to take account of the Defendant’s plea is 2 years’ imprisonment. The Defendant is therefore to serve a term of 2 years for each of charges (1) to (4).

17.  Having considered the totality principle, I take the view that an overall term of 27 months should sufficiently reflect the Defendant’s culpability in these 4 charges. I therefore order that only 3 months of the 2-year term in respect of charge (2) are to run consecutively to the term in respect of charge (1) whereas the terms in respect of charges (3) and (4) are to run wholly concurrently with those for charges (1) and (2), making a total term of 27 months’ imprisonment.