HKSAR v. TSUI WAI YAT

DCCC 1004/2017
DCCC 1122/2017
(heard together)

[2018] HKDC 666

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1004 & 1122 OF 2017 (heard together)

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REASONS FOR SENTENCE

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1.  Although there is no application for consolidation of the 2 cases DCCC 1004/2017 and 1122/2017, these 2 cases are dealt with together upon the defendant’s request.

DCCC 1004/2017

2.  The defendant pleaded guilty to 12 counts of “Using a forged identity card”, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap. 177, one count of “Possession of a forged identity card”, contrary to section 7A(1) of the Registration of Persons Ordinance and one count of “Failing to surrender to custody without reasonable excuse”, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap. 221.

Facts of DCCC 1004/2017

3.  Between 3 August 2016 and 9 September 2016, the defendant used forged identity cards to apply for extension of service contracts with telecom companies and purchased smartphones at discounted price.

4.  Evidence revealed that in respect of charges 1-12, the defendant approached 12 different branches of telecom companies, namely CSL and Three, with a view to obtain new smartphones at discounted price by using 12 different forged ID cards bearing personal particulars of 12 genuine subscribers of mobile phone numbers.  On each occasion, he used the same modus operandi by approaching staff of telecom company and making request to extend the service contract in return for purchase of new smartphone at discounted price. 

5.  In respect of charges 1-5 and 7-9, since the defendant was able to provide the phone number of the person named in the ID card and produce a forged ID card in that name, staff of telecom companies complied with the request and provided one smartphone to the defendant on each of those 8 occasions.   

6.  In respect of charge 6, staff of CSL found the background colour of the ID card was different from others and requested the defendant to wait for further verification.  The defendant fled without taking the forged ID card.  The ID card left by the defendant was examined and found to be forged.

7.  In respect charges 10-12, the defendant’s attempt was unsuccessful as the staff either suspected the ID card to be forged or requested the defendant to produce the relevant credit card for processing. 

8.  For charges 12-13, staff of Three reported to the police while the defendant and a female were waiting in the shop.  Police later arrived and arrested the defendant.  Under caution, the defendant stated that he purchased the forged ID card for RMB2,000 for purchasing mobile phone in Three.  Upon search, another forged ID card in another name was found in the defendant’s wallet.  Under caution, he admitted purchasing the forged ID card for RMB2,000 and pretended to be a couple with the female to deceive mobile phone.  The ID card produced by the defendant and also the one found in his possession on that occasion were examined and confirmed to be forged. 

9.  The persons named in the 13 forged ID card confirmed that they had never lost their ID cards.    

10.  CCTV footages for charges 1-13 all captured the defendant entering and approaching staff member of the shop at the material times.  Staff member of CSL and Three positively identified the defendant in ID parades (charges 1-6 and 9-11).  

11.  In subsequent video-recorded interviews, the defendant admitted under caution that in respect of each of charges 1-5 and 7-9, he provided two photos of himself to an unknown person A who later provided him with a forged ID card, a telephone number and some cash.  D then took the forged ID card to the shop as instructed by A.  At the shop, he falsely represented himself as owner of the relevant mobile phone number and applied to renew the service contract so as to obtain by deceit a smartphone at discounted price.  He paid for the new smartphone using the cash provided by A.  After he successfully obtained the phone, he passed the forged ID card and the phone to A.  A then gave him a reward of HK$1,000.  For charges 6, as staff of CSL inspected the ID card, the defendant fled without taking the forged ID card. He then returned the cash to A and had not received any reward.  For charges 10-11, as the transactions were unsuccessful, the defendant returned the forged ID card and cash to A.  He did not receive any reward.  He identified himself in the CCTV capture for charges 1-13. 

12.  In respect of charges 1-13, the case was transferred to the District Court.  On 28 November 2017, the defendant was granted bail with reporting condition.  However, he failed to reported to the police on 8 January 2018 and had not surrendered to the court on 9 January 2018.  A warrant of arrest was issued.  On 23 January 2018, the defendant was located and arrested in New Territories.  He had no reasonable excuse for failing to surrender to custody as was appointed by the court.

DCCC 1122/2017

13.  The defendant pleaded guilty to one count of “Trafficking in a dangerous drug” contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

Facts of DCCC 1122/2017

14.  At around 2:50am on 3 August 2017, the defendant was intercepted at the Customs Arrival Hall, Lok Ma Chau Control Point, Hong Kong. A search was conducted on the defendant.  When the defendant was removing his jeans, a re-sealable plastic bag containing 4.66 grammes of a powder containing 2.66 grammes of methamphetamine hydrochloride fell from the defendant’s front right waist area.  The defendant was arrested.  In his possession was cash of RMB21 and 1 mobile phone.

15.  The estimated street value of the drugs seized was HK$1,906. 

16.  Under caution, the defendant admitted that the drug seized was ice.  He bought the ice for RMB200 from an unknown male in the Mainland at around 2:00am on 3 August 2017.  The drug was for his self-consumption. He was scared that he would be intercepted so he placed the drug into his waistband area.

Mitigation

17.  The defendant is aged 34, single and lived with his parents.  He has 3 previous conviction records, all of which are not related to the offences in the present two cases.  His last conviction is in 2007.

18.  In mitigation, it was submitted that the defendant had been a good man for almost 10 years since his last conviction.  He had gainful employment and even set up his own company for the past 8 years.  Since 2015, he started working as casual worker. He had all along supported the family financially.  At around August 2016, he had no job and was not able to pay the household expenses.  He was then offered a job by his friend, leading to the offences in DCCC 1004/2017.  He was remorseful for what he had done and he therefore cooperated with the police and made frank admission of the offences. It was further submitted the defendant was willing to compensate the companies for the financial loss suffered and offered to pay the compensation within 6 months after release from prison.  For the offences of using forged ID card, the court was urged to adopt a starting point of 15 months’ imprisonment with reference to HKSAR v Lau Kam Ling, HCMA 223/2010.  For the offence of possession of forged ID card, it was suggested that 12 months is an appropriate starting point.

19.  For the offence in DCCC 1122/2017, it was submitted that just before the offence, the defendant had been offered logistic work for 1 week.  He was exhausted after the work.  He was advised by his friend to take ice to make him feel good.  He foolishly took that advice, purchased the drug and brought it to Hong Kong.    

Sentence

20.  In sentencing, as the defendant’s previous conviction records are not related to the offences in question, I do not consider those conviction records as an aggravating factor.  Further, I consider the only mitigating factor in this case is the defendant’s guilty plea.   

DCCC 1004/2017

21.  This case involves the use of 12 different forged ID cards by the defendant who is a Hong Kong citizen for the purpose of deceiving telecom companies in order to obtain smartphones at discounted price.

22.  It is apparent that the sentencing guidelines in HKSAR v Li Chang Li [2005] 1 HKLRD 864 referred by the defence is not applicable to the present case. 

23.  In sentencing, apart from considering the case of Lau Kam Ling relied on by the defence, I also take into consideration the modus operandi of the defendant, that 12 forged ID cards were used, the overall period of offending is from 3 August 2016 to 9 September 2016 and the total value of the smartphones obtained by the defendant regardless of the prepayment.  For each of charges 1-12, I consider the appropriate starting point is 15 months’ imprisonment.  Given the defendant’s guilty plea, the sentence for each charge is reduced to 10 months’ imprisonment. Taking into consideration the totality principle, 2 months of the sentence of each of charges 2-12 will run consecutive to the sentence of charge 1 and other charges 2-12.  In other words, the total sentence for charges 1-12 is 32 months’ imprisonment.  

24.  For charge 13, I adopt a starting point of 12 months, reduce it to 8 months for the guilty plea.  2 months of this sentence is to run consecutive to the sentences for charges 1-12.

25.  For charge 14, I adopt a starting point of 3 months and reduce it to 2 months’ imprisonment given the guilty plea.  The sentence of charge 14 is to run consecutive to the sentence of charges 1-13.

26.  The defendant offered to compensate the telecom companies for the loss suffered after he served the sentence for the present two cases.  While it shows the defendant is remorseful, given there is uncertainty as to whether he was able to pay the compensation within 6 months from release from prison as offered, I consider it not appropriate to make the compensation order in such circumstances. 

27.  To sum up, in respect of DCCC 1004/2017, the total sentence is 36 months’ imprisonment.

DCCC 1122/2017

28.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in ice (see AG v Ching Kwok Hung [1991] 2 HKLR 125).  For trafficking up to 10 grammes of ice, the sentence ranges from 3 to 7 years’ imprisonment.  In the present case, the amount of ice involved is 2.66 grammes.  For this quantity, the appropriate starting point is 48 months’ imprisonment. 

29.  It is confirmed by the prosecution that the basis of the trafficking charge is on the importation of the drug across the border and they did not have evidence to rebut the defendant’s allegation that the drug was for his own consumption.  Given the small amount of drug involved and taking into consideration the mitigation advanced, I am prepared to accept that the defendant would consume all the drug himself.  I bear in mind the remarks of the Court of Appeal on the sentencing of importation of drugs for self-consumption in HKSAR v Mak Wai Ming [2012] 2 HKLRD 418.  In the circumstances, I consider it appropriate to reduce the sentence by 25% to reflect this mitigating factor.  The starting point is therefore reduced to 36 months.  Given the defendant’s guilty plea, the sentence is further reduced to 24 months’ imprisonment.

30.  The offences in DCCC 1004/2017 are separate and distinct offences from the offence in DCCC 1122/2017.  In theory, their sentences should run consecutively.  Having taken into consideration the totality principle, I am satisfied that a total sentence of 48 months is sufficient to reflect the criminality of the defendant’s conduct.  I therefore order that 12 months of the sentence for DCCC 1122/2017 to be served consecutive to the total sentence for DCCC 1004/2017, making a total sentence of 48 months’ imprisonment.  I hereby sentence the defendant to 48 months’ imprisonment.