HKSAR v. WU XIN

DCCC812/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 812 OF 2012

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Reasons for Sentence

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1.  Defendant you pleaded guilty to three offences of obtaining property by deception, each contrary to Section 15(1) of the Theft Ordinance, Cap.210; four offences of attempting to obtain property by deception contrary to Section 17(1) of the Theft Ordinance, Cap.210 and Section 159G of the Crimes Ordinance Cap.200; one offence of possession of a forged ID card, contrary to Section 7A(1) of the Registration of Persons Ordinance, Cap.177; and one offence of possession false documents, contrary to Section 75(2) of the Crimes Ordinance, Cap.200.

2.  You pleaded not guilty to one offence of handling stolen goods contrary to Section 24(1) of the Theft Ordinance, Cap.210.  In respect of this latter offence I ordered it to be kept on file not to be proceeded with save with the leave of this court or the Court of Appeal.

3.  In respect of those charges you pleaded guilty to you admitted the brief facts and I convicted you.

4.  The prosecution case was as follows.  The Dah sing Bank found that two newly issued credit cards, namely MasterCard 5521003601596003 in the name of Ha King-yip, Makin, card A and Visa Card 4514221413659007 in the name of Lau Ho-man, card B, wee misused in seven transactions.  Three, namely charged 1 to 3 were successful involving a sum of $46,058.50.  Ha King-yip, Makin claimed the Dah Sing Bank approved his application for a master card on 10 January of this year but it was never delivered to him.

Charges 1 to 4

5.  On 12 January this year at about 1534 hours you successfully purchased three cans of milk power from JUSCO at Kornhill Plaza, Quarry Bay for $735.50 using card A.  At about 1600 hours that same day you visited Tse Sui Luen Jewellers at the same shopping centre.  You purchased a gold necklace with pendant and gold ring for $20,560 using card A which is Charge 2.  At about 1713 hours you went to Chow Sang Sang Jewellers, Hennessy Road, Causeway Bay.  You purchased a gold necklace for 24,763 using card A, that is Offence 3.  At about 1800 hours you visited another Chow Sang Sang Jewellers at Time Square.  You presented card A for a gold necklace worth $17,560 but this was unsuccessful and you left, Charge 4.

Charges 5 to 7

6.  On 5 March of this year at about 1614 hours you visited Tse Sui Luen Jewellers at Kornhill Plaza again. You presented card B to purchase a gold necklace and pendant for $22,400 but it was unsuccessful, that is Charge 5.  You then presented the same card again for just the necklace which was worth $12,475 but again it was refused by the bank.  You then left, Charge 6.  At about 1642 hours you went to Park N Shop at Kings Road, Quarry Bay.  Here you used card B to try to purchase a can of milk power valued at $574.20 but it was refused by the bank.  You left.  Charge 7.

Charges 8 and 9

7.  On 5 July this year at about 1509 hours a couple, that is, WP1 and WP2 used a credit card, 4811120101115589, Exhibit 8 to purchase two pairs of sunglasses, Exhibits 21 and 22 from Optical 8 Landmark North, 30 Lung Sham Avenue, Sheung Shui for $4,816.00 which is transaction 1.  At about 1539 hours wanted person 1 used a counterfeit credit card, 4270820022386938, Exhibit 3 to purchase a watch, Exhibit 23 for $6,822 from City Chain at the same location, transaction 2.  At about 1941 hours wanted person 2 used a counterfeit credit card 5290794010132167, Exhibit 7 to purchase two bottles of perfume, Exhibit 24 from Bonjour Cosmetics, Fu Hing Street, Sheung Shui for $1,343.00, transaction 3. 

8.  On that same day at about 2138 hours you were arrested at Lo Wu leaving Hong Kong.  You were searched and the following items found. 

(a) A Hong Kong ID card in the name of Zhang Jian-ming, Exhibit 1 which is charge 8.

(b) A home re-entry permit in the same name, Exhibit 2.

(c) A Citibank Visa card, 4270820022386938 in the Lee Hor Ben Exhibit 3.

(d) A Citibank MasterCard 5462130053450149 in the name of Lee Li-wa, Exhibit 4.

(e) A Citibank Visa card 4270820022412403 in the name of Lee Li-wa, Exhibit 5.

(f) A Chase Visa card 447962169563634 in the name of Lee Li-wa, Exhibit 6.

(g) A Chase MasterCard 5290794010132161 in the name of Lee Li-wa, Exhibit 7.

(h) A Bank of America Visa card 4811120101115589 in the name of Lee Hor Ben, Exhibit 8.

(i) A HSBC Gold MasterCard 5291497351891374 in the name of Lee Hor Ben, Exhibit 9.

(j) A HSBC MasterCard 5184080200022530 in the name of Lee Li-wa, Exhibit 10, Charge 9.

(k) Nine UnionPay cards, Exhibit 11 and 13-20 in your name.

(l) An Agricultural Bank of China MasterCard in your name, Exhibit 12.

9.  In a subsequent video record of interview under caution you said the following inter alia:

(a) You were from the Mainland.

(b) In 2011 you met a person called Ming Chai in a Sauna parlour in the Mainland. In January 2012 Ming Chai, knowing you had financial problems made the Hong Kong ID card and the Home Re-entry Permit, Exhibits 1 and 2 and credit cards for you. You were to make purchases with the credit card and share the proceeds equally with Ming Chai.

(c) You were the purchaser in charges 1 to 7. You passed the purchase of Charges 1 to 3 to Ming Chai who only gave you $1,000 promising that he would give you the rest later but never did so.

(d) You accompanied wanted person 1 and wanted person 2 to make transactions 1 to 3. They passed credit cards to you to take back to Guangzhou. You did not know your friends used forged credit cards in transactions 1 to 3 until a later stage.

(e) You did not know the credit card holders of Exhibits 3 to 10. All UnionPay cards, Exhibit 11 and 13 to 20 belonged to you.

(f) You wanted to use the forged Hong Kong ID card, Exhibit 1 to look for jobs but did not do so as it looked forged.

Forensic Examination of Exhibits 1 to 20

10.  The Government Chemist confirmed Exhibit 1, that is, the Hong Kong ID card to be forged.  And Exhibit 3, 5, 6, and 8 were forged Visa cards and Exhibits 4, 7, 9 to 10 forged MasterCards.  Exhibit 2, the Home Re-entry Permit nor the 9 UnionPay cards could be so designated.  The MasterCard, Exhibit 12 in your name was genuine.

11.  CCTV footage shows you to be the purchaser in Charges 1 to 7.  Travel records confirm that you were in Hong Kong on 12 January of this year and 5 March.

12.  You are a man of hitherto clear record in Hong Kong.  On your behalf Mr Necholas entered mitigation.  He told me that you agreed with and accepted the contents of the antecedent statement.  From this I glean that you are 35 years of age, single and educated to High School level.  Mr Necholas said that the basis of these offences lay in your financial problems.  You are the family’s sole bread winner earning some $4,500 Renminbi per month, working for an insurance company.  You had to pay rent of $2,000 Renminbi per month and provide for your retired parents and an unemployed younger brother. 

13.  In the past you had accumulated some savings but you had lost these in a failed business venture.  You had met Ming Chai, a shady character who had persuaded you to assist him.  Before 12 January this year Ming Chai invited you to come to Hong Kong.  On arrival he had told you that he had applied on your behalf for a Hong Kong ID card, a re-entry permit and credit cards.  He told you to make purchases using the credit cards and that you would share the proceeds equally.  You found after the commission of Charges 1 to 4 and the provision of articles from 1 to 3 to Ming Chai he only gave you $1,000.  At some stage he had even demanded this money back. 

14.  In March Ming Chai demanded you come back to Hong Kong were he pretended the police were after you and threatened to report you if you didn’t use a different card to make further purchases.  This led to Charges 5 to 7 inclusive which were unsuccessful.  You returned the card to Ming Chai and left Hong Kong. 

15.  Strangely you were caught up in some unrelated police inquiries and agreed to return when required.  As a result you returned in July and this matter was laid to rest.  On that occasion you met up with a female acquaintance and her male friend, you agreed to take back a number of credit cards to Guangzhou for disposal however you were stopped at the border and they were found. 

16.  Mr Necholas emphasised your clear record both here and on the Mainland.  He told you that you had abandoned your intention to seek work in Hong Kong using the forged ID card as it was so obviously false. You were caught before you could rid yourself of it.  Mr Necholas produced a very positive testimonial from your employer.  I have read that and taken it fully into account.  Finally, you expressed your remorse and he pleaded on your behalf for leniency. 

17.  The prosecution produced two sentencing authorities both are extremely helpful and well known.  These were R v Chan Siu Toh & Another Court of Appeal Criminal Appeal 115/1996 and HKSAR v Lee Chang Lee Court of Appeal, Magistracy Appeal 935/2004.  The latter deals with the possession of forged ID cards.

18.  I turn now to the sentence.  This is a serious catalogue of offences committed deliberately in order to bolster your finances.  You did not act alone and the goods actually obtained were worth about $46,000 and have not been recovered.  The offences span three occasions in January, March and July of this year.  I am prepared to accept that you did not use the forged ID card even though you intended to do so but this was just because of the quality.  Charge 9 was amended to a lesser charge under Section 75(2) of the Crimes Ordinance and in that charge you merely acted as a courier for the cards. 

19.  From the facts it is apparent you were cooperative on arrest telling the police that full facts.  From the testimonial you present as a good and valued employee; also a good family man who strives his best to provide for his parents and brother.  I note also your clear record. 

20.  The following sentences will be imposed.  On Charges 1 to 7 on each I take a starting point of 3 years, reduced to 2 years for your plea of guilty.  These will be served concurrently.  Charge 8 I take as a starting point of 12 months’ imprisonment reduced to 8 months for your plea of guilty.  Applying the principle of totality, 3 months will be consecutive to the sentence and 5 months concurrent.  Charge 9 I take a starting point of 18 months’ imprisonment reduced to 12 months for your plea of guilty.  To reflect the principle of totality this will be concurrent. Therefore in total you will go to prison for a period of 27 months. 

21.  Finally, I record my thanks to counsel for their assistance.