HKSAR v. WONG KWOK HUNG, SAM AND OTHERS

DCCC 355/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 355 OF 2009

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Reasons for sentence of D1 and D3

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Charges

1. D1 pleads guilty to the following charges:

(1)    using a false instrument, namely a credit card, in Wellcome Supermarket (Charge 1);

(2)    using a false instrument, namely a credit card, in Park’N Shop (Charge 2);

(3)    possession of false instruments, namely 17 false credit cards (Charge 3). 

2. D3 pleads guilty to the following charges:

(1)    using a false instrument, namely a credit card in CSL (Charge 4);

(2)    possession of false instruments, namely 22 credit cards including 7 of them in the name of Lam Ying Ki and 6 of them in the name of Kwong Yee Kiu (Charge 5);

(3)    possession of a forged Hong Kong Identity Card in the name of Lam Ying Ki (Charge 6);

(4)    possession of dangerous drugs, namely heroin and “ice” (Charge 7);

(5)    possession of apparatus for inhaling “ice” (Charge 8);

(6)    possession of forged travel documents, namely 2 China Re-entry Permits in the names of Lam Ying Ki and Kwong Yee Kiu respectively (Charge 9).

Facts

3. On 19 December 2008, D1 used a false credit card issued by Wing Lung Bank to pay for 2 transactions, each being two cans of milk powder valued at $423.80, from Wellcome Supermarket at 4:20 p.m. (Charge 1) and Park’N Shop at 5 p.m. (Charge 2). 

4. In each instance, the transaction was completed but the staff of Wellcome and Park’N Shop both found that the card number displayed on the credit card machine did not tally with the particulars on the credit card.  They each made a report to the police.  D1 had left Park’N Shop without retrieving the credit card. 

5. At around 11 a.m. on 13 January 2009, D3 went to a shop of CSL and paid for a mobile phone and mobile phone service valued at $4,188.00 with a false Standard Chartered Bank credit card.  The staff member was told by the card centre that the code of the credit card could not be obtained. 

6. In identification parades, D1 was identified by the Wellcome and the Park’N Shop staff members whereas D3 was identified by the CSL staff member.

7. D1 was arrested on 12 January 2009 when the police found him suspicious near the Grandeur Terrace.  A body search on him yielded 17 false credit cards (Charge 3).

8. On 12 January 2009, a male was body-searched by the police in Tin Shui Wai Police Station.  He had a card key to Room 2671 of the Harbour Plaza Resort.  D3 took over his room in her own name on 13 January 2009.  The police searched the room and found 22 false credit cards (Charge 5), a forged Hong Kong Identity Card (Charge 6), heroin and “ice” (Charge 7), apparatus for inhaling “ice” (Charge 8), and 2 forged China Re-entry Permits (Charge 9). 

9. According to the prosecution, the potential losses for the credit cards were as follows:

(1)    Charge 1: 1 false MasterCard (US$1,300);

(2)    Charge 2: 1 false MasterCard (US$1,300);

(3)    Charge 3: 17 false VISA cards, each US$985 (US$16,745);

(4)    Charge 5: 1 false MasterCard (US$1,300), 21 false VISA credit cards, each US$985 (US$20,685).

Mitigation put forward

10. D1 is 45 years of age.  He was born in Hong Kong.  He has received up to F. 2 education.  He had no job at the time of arrest.  He lives with his mother.  He has 18 records for 17 court cases, none for credit card fraud, though.  He committed the offence out of stupidity. 

11. D3 is 33 years of age.  She was born in China.  She has studied up to high school.  She had no job at the time of arrest.  She is divorced with a 9-year-old daughter, who is in the custody of her ex-husband.  She has a clear record.  She has been a drug addict but the detention pending the present case has compelled her to quit the habit.  She committed the offence because she was ill-used by others.  She misses her daughter day by day.     

Sentencing principles

Using and possessing false credit cards

12. In R v Chan Sui-to & Anor [1996] 2 HKCLR 128, Yang CJ, who delivered the judgment of the Court of Appeal, said:

"A number of authorities were cited to us to indicate the level of sentences for credit card frauds. It is not easy to reconcile the sentences, but in general we apprehend that a sentencing judge would need to consider various factors including:

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

2. The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent.

3. Whether there is 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 is a mere "cog in the wheel" as a courier or a custodian or keeper.

5. Whether there is a plea of guilty.

In considering whether large sums of money were involved, we would suggest that, at the present cost of living, amounts up to $50,000 may be considered relatively small, amounts from $50,000 to $150,000 medium, and amounts above that may be considered large.

We now look at some of the authorities, bearing in mind the factors suggested above. It goes without saying that the five factors mentioned above are not intended to be an exhaustive list."

13. In HKSAR v Yau Wai Chun CACC 417/ 2000 Stuart-Moore VP raised the issue of “potential for losses” as reflecting the degree of culpability.  He referred at para. 11 to HKSAR v Ng Swee Thiam and Others [2000] 1 HKLRD 778:

[T]he court stated in HKSAR v Ng Swee Thiam and Others [2000] 1 HKLRD 772 at 778 that it was the "potential for losses" which was the most important consideration in that case. This, it should be said, will often have relevance, as it does in the matter presently before us. It has long been recognised in Hong Kong that those who indulge in fraud of this kind can expect to be given severe sentences as it erodes the confidence which people are entitled to have in a society where great dependence is placed on the credit card method of payment. (See: Attorney General v Chan Piu-sang and Another [1994] 1 HKCLR 211).

Possessing documents of identity and false credit cards with same names

14. In HKSAR v Yim Wai Ling William CACC 35/2004, the appellant possessed an identity card relating to another person (4^th charge) and a false credit card (5^th charge).  On 3 occasions he attempted to use two other false credit cards for shopping (1^st, 2^nd, 3^rd charges).  The Court of Appeal approved a sentence of 12 months upon a plea of guilty for possession of identity cards to support the use of false credit cards.  Woo VP said:

31.   It appears that the courts adopted a different approach to the same offence of possession of another person's identity card: a starting point of about 12 months (before giving credit to a guilty plea) was adopted for cases that were connected with credit card frauds but a starting point of 15 months (after giving credit to a guilty plea) was adopted in connection with illegal immigrant cases. What seems to us to be the possible reason is that the identity card offence is subsumed in the more serious offence of using forged credit cards on the one hand and the more serious offence of unlawfully remaining or working in Hong Kong on the other.

15. It appears that where the documents of identity were not related to any immigration status but the potential use of false credit cards with the same names, there can be no basis for distinction between possession of a forged Hong Kong Identity Card or a forged China Re-entry Permit. 

16. In R v Chan Piu-sang [1994] 1 HKCLR 211, the first respondent possessed 2 false credit cards (1^st Charge) and 5 false credit cards 2 months later (3^rd Charge).  The Court of Appeal regarded that the appropriate starting point should have been 1 ½ years (1^st Charge) and 4 years (3^rd Charge). 

17. In HKSAR v Bin Kei Chi & Anor CACC 181/2005, the two applicants pleaded guilty to, among other charges, the joint possession of 25 false credit cards.  It was a medium-sized operation with an international element.  The sentencing judge took a starting point of 6 years’ imprisonment.  It was reduced to 4 years due to his plea of guilty.  The Court of Appeal upheld the sentence.  

18. In HKSAR v Yasushi & Anor CACC 470/2006, each of the two applicants pleaded guilty to the charges of using a false credit card to purchase a Rolex watch (the charge of using a false instrument), which purchase was verified by a false passport (the charge of using a false passport), and possessing 3 false credit cards and the false passport.  The Court of Appeal regarded that the starting points should have been:

(1)    3 ½ years for using the false credit card;

(2)    18 months for using the false passport; and

(3)    3 ½ years for possessing the 3 credit cards and the false passport.

19. Taking in account the pleas of guilty, the sentences became 28 months, 12 months, and 28 months respectively.  The 28 months’ sentences were to run concurrently but 4 months of the 12 months’ sentence was to run consecutively to the other charges.  Each applicant was sentenced to 32 months in total.

Possessing heroin and “ice”

20. There is no sentencing tariff for possession in small quantities. 

Possessing apparatus for inhaling “ice”

21. There is no sentencing tariff for possession of such apparatus.   

D3’s clear record

22. It is submitted on behalf of D3 that her clear record qualifies for further discount on top of her plea of guilty.  The same argument was raised but rejected by the Court of Appeal in Yasushi (above).  Stuart Moore Ag CJHC said: 

13.  We can dispose of the last point straightaway.  We have on many previous occasions stated that a clear record is a factor which is generally to be regarded as neutral (HKSAR v Wen Zelang [2006] 4 HKLRD 460 at 465) unless there is some evidence of positive good character such as may occur where there has been voluntary service within the community (HKSAR v Leung Shuk-man [2002] 3 HKC 424 at 427-428).    

Sentencing D1

23. He faces 3 charges as follows:

(1)    using a false instrument, namely a credit card, in Wellcome Supermarket (Charge 1);

(2)    using a false instrument, namely a credit card, in Park’N Shop (Charge 2);

(3)    possession of 17 false credit cards (Charge 3). 

24. For Charge 1, although the actual loss was $423.80 only, the potential loss was US$1,300.  I take a starting point of 12 months.  I reduce it to 8 months because of his plea of guilty. 

25. For Charge 2, although the actual loss was $423.80 only, the potential loss was US$1,300.  I take a starting point of 12 months.  I reduce it to 8 months because of his plea of guilty. 

26. For Charge 3, the potential loss for the 17 false credit cards was US$16,745.  I take a starting point of 4 years.  I reduce it to 2 years and 8 months because of his plea of guilty. 

27. The commission of the 3 charges did not form any single transaction.  The sentences shall be concurrent.  However, by totality, I order as follows:

(1)    Charge 3, 2 years and 8 months;

(2)    Charge 1, 8 months, 4 months consecutive to all other charges;

(3)    Charge 2, 8 months, 4 months consecutive to all other charges.

28. The total length is 3 years and 4 months.

Sentencing D3

29. D3 faces 6 charges as follows:

(1)    using a false credit card in CSL (Charge 4);

(2)    possession of 22 false credit cards (Charge 5);

(3)    possession of a forged Hong Kong Identity Card (Charge 6);

(4)    possession of dangerous drugs, namely heroin and “ice” (Charge 7);

(5)    possession of apparatus for inhaling “ice” (Charge 8);

(6)    possession of 2 forged China Re-entry Permits (Charge 9).

30. For Charge 4, although the actual loss was $4,188 only, the potential loss was US$1,300.  I take a starting point of 12 months.  I reduce it to 8 months because of her plea of guilty. 

31. For Charge 5, the potential loss for the 22 false credit cards was US$21,985 (i.e., US$1,300 + US$20,685).  I take a starting point of 4 years and 3 months.  I reduce it to 2 years and 10 months because of her plea of guilty. 

32. For Charge 6, the forged Hong Kong Identity Card in the name of Lam Ying Ki was no doubt to support the use of the 7 false credit cards in the same name that she possessed (in Charge 5).  I take 12 months as the starting point (based on Woo VP’s observation in Yim Wai Ling William above).  I reduce it to 8 months because of her plea of guilty. 

33. For Charge 7, I take a starting point of 12 months.  I reduce it to 8 months because of her plea of guilty. 

34. For Charge 8, I take a starting point of 12 months.  I reduce it to 8 months because of her plea of guilty. 

35. For Charge 9, the forged China Re-entry Permits in the names of Lam Ying Ki and Kwong Yee Kiu were no doubt to support the use of the 7 false credit cards in the name of Lam Ying Ki and the 6 false credit cards in the name of Kwong Yee Kiu that she possessed (in Charge 5).  I take 12 months as the starting point.  I reduce it to 8 months because of her plea of guilty. 

36. None of the aforesaid charges formed a single transaction.  The sentences shall be consecutive.  However, by totality, I order as follows:

(1)    Charge 5, 2 years and 10 months;

(2)    Charge 4, 8 months, 4 months consecutive to all other charges;

(3)    Charge 6, 8 months, 4 months consecutive to all other charges;

(4)    Charge 7, 8 months, 1 month consecutive to other charges;

(5)    Charge 8, 8 months, 1 month consecutive to other charges;

(6)    Charge 9, 8 months, 4 months consecutive to all other charges.

37. The total length is 4 years.