HKSAR v. HANGANU ION

DCCC 236/2020

[2020] HKDC 733

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 236 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to two charges of using a false instrument, contrary to section 73 of the Crimes Ordinance (charges 2 & 3)[1]; one charge of possession of false instruments, contrary to section 75 (1) of the Crimes Ordinance (charge 4) and one charge of possessing equipment for making false instruments, contrary to section 76 (1) of the Crimes Ordinance (charge 5).

2.  Full particulars of the offences are set out in the facts admitted by the defendant on 20 August 2020. 

3.  In summary on 21 August 2019 the defendant, a visitor from Romania who was staying in the Rosedale Hotel on Tai Kok Tsui Road, used two forged credit cards to purchase goods from the Apple Store and from Louis Vuitton.  When the defendant was arrested at Louis Vuitton he was found in possession of two more forged credit cards.  When the defendant’s hotel room was searched the goods purchased in the Apple Store and the receipts were recovered together with equipment for making false instruments. 

Charge 2

4.  At about 12:33 p.m. on 21 August 2019 the defendant used a credit card to purchase goods for the total price of $42,294 from the Apple Store on Canton Road in Tsim Sha Tsui.  CCTV captured the defendant making the purchases at the Apple Store[2].

5.  CCTV also captured the defendant returning to his hotel room at 1:10 p.m. the same day carrying a white (Apple) paper bag.  When the defendant’s hotel room was searched the next day all the products purchased in the Apple Store were recovered together with the receipts. The police also seized  the clothing worn by the defendant when purchasing the goods in the Apple Store[3].

6.  In a video recorded interview the defendant admitted that he bought the goods from the Apple Store using a fake card which he claimed he had purchased together with other fake cards and which he had discarded in a rubbish bin near the Apple Store[4].

Charge 3

7.  At around 4 p.m. the same day (21 August) the defendant returned to Canton Road and entered Louis Vuitton.  The defendant used a Banca Transilvania MasterCard credit card to purchase a handbag and wallet for the total price of $33,400. The credit card terminal of Louis Vuitton indicated that the transaction failed.  The defendant then took out a CapitalOne Visa credit card for payment.  The transaction again failed[5].

8.  Suspecting that the defendant was using forged credit cards the staff of Louis Vuitton called the police.  As the defendant walked out of the store he was intercepted by the police.  The police found the Banca Transilvania MasterCard credit card and the CapitalOne Visa credit card in the defendant’s wallet[6].

9.  CCTV captured the defendant entering and leaving Louis Vuitton[7]. 

10.  The Government Forensic Scientist, Dr Hui, examined the CapitalOne Visa credit card. Dr Hui was of the opinion the card was forged[8].

Charge 4

11.  When the defendant was intercepted at Louis Vuitton apart from the Banca Transilvania MasterCard credit card and the CapitalOne Visa credit card the police found three more credit cards in the defendant’s wallet, namely a Citibank MasterCard credit card; a Citibank Visa credit card and a China Everbright Bank UnionPay card.  All five cards bore the defendant’s name[9].  The police also found on the defendant HK$59,650 and RON 126.

12.  In the video recorded interview, the defendant admitted that the CapitalOne Visa credit card, the Citibank MasterCard credit card and the Citibank Visa credit card were fake and claimed that he had purchased the cards together with other fake cards on an American website[10].

13.  Dr Hui examined the Citibank MasterCard credit card and the Citibank Visa credit card. Dr Hui was of the opinion the cards were forged[11]. 

Charge 5

14.  At around 1:25 a.m. on 22 August 2019 the police searched the defendant’s hotel room.  On the desk in the room the police found a desktop, an external card reader with cable, a pair of AirPods, a bronzing machine mounted with a roll of silver foil and an embossing machine.    Photographs showing the credit cards, the bronzing machine and the embossing machine have been submitted to court[12]. 

15.  Inside the safe in the hotel room the police found HK$70,000, three gold necklaces and a smartphone. 

16.  In the video recorded interview, the defendant admitted that he bought the bronzing machine and the embossing machine from the Mainland for making credit cards but had never used the machines[13].

17.  Dr Hui examined the embossing machine and the bronzing machine.  Dr Hui found that the embossing machine could be used to prepare embossed alphanumeric characters and symbol entries on plastic cards and was of the opinion that the embossing machine or a machine of similar make could have prepared the forged credit cards used in Louis Vuitton and found in the defendant’s wallet[14].

18.  Dr Hui found that the bronzing machine was a hot stamping machine which was capable of hot pressing and transferring silver foil to the raised parts of the embossed data on control cards used for parallel comparison.  Dr Hui was of the opinion that the machine was functioning properly and was able to heat transfer the silver foil to the embossed data on the control cards but had not been used to produce the silver colour to the raised part of the embossed data on the CapitalOne Visa credit card, the Citibank MasterCard credit card and the Citibank Visa credit card[15].

Mitigation

19.  In passing sentence, I have carefully considered the oral and written submissions of Mr Sherry, including that the defendant, who is 41, lives with his wife and son aged 13 in Romania[16].

20.  The defendant is a wedding photographer in Romania.  The defendant planned to start a car washing business and came to Hong Kong with the intention of going to China to buy a car washing machine[17].

21.  The defendant has a clear criminal record[18].  This however carries little weight, the commission of offences by visitors being an aggravating feature of sentence[19].

22.  I have read the defendant’s mitigation letter in which he reflects on how his actions have impacted upon his life and that of his wife and child[20]. 

Sentence

23.  In passing sentence, I take into account the factors which a sentencing judge will need to consider in credit card frauds as set out by the Court of Appeal in R v Chan Sui To, including the size of the operation; the planning that had gone into perpetrating the fraud; whether there is an international dimension; and whether the accused played a major role.  The factors were not intended however to be exhaustive but provide valuable assistance to the court.  The courts have repeatedly stressed that deterrent sentences are to be imposed[21]. 

24.  Mr Sherry submits that the defendant acting alone, simply “took his chances” in what was a crude and unsophisticated, small scale operation with no international dimensionand that a total maximum sentence should not after discount exceed 2 years imprisonment[22].   

25.  In support of his submission Mr Sherry refers the court to two cases where the Court of Appeal, having referred to R v Chan Sui To, held in both cases that a starting point of 3 years’ imprisonment was appropriate for a small scale operation[23].

26.  I do not agree this was a crude and unsophisticated, small scale operation with no international dimension. 

27.  In R v Chan Sui To the Court of Appeal suggested that an accused who plays an active but not necessarily a key role in a medium sized operation involving between $50,000 and $150,000 with no elaborate planning and equipment, and without an international element, should receive a sentence of five to six years after trial[24].

28.  The court further stated that sentences may be adjusted upwards or downwards according to the circumstances and that the sum of money involved is only one of the factors to be taken into account and not even the most significant factor[25].

29.  The defendant targeted high value goods, $42,294 from the Apple Store and $33,400 from Louis Vuitton.  Although there is no evidence before the court of the potential loss arising from the three forged credit cards, the value of the goods alone, even taking into account inflation since the judgment in R v Chan Sui To was delivered in 1996, is indicative that the operation is not a small scale operation[26].

30.  The forged credit cards were all in the name of the defendant. In HKSAR v Au Yeung Shu Sang the Court of Appeal held that an aggravating feature of sentence was that the defendant was not acting alone and was obviously part of a wider organisation that had caused cards to be printed specifically for him[27].   

31.  I note that the defendant claimed he bought the credit cards from an American website which required him to provide his name and address[28].  Forged credit cards in the name of the defendant is also indicative that the operation is not a small scale operation.

32.  The possession of equipment for making forged credit cards is the clearest evidence that this was not acrude and unsophisticated, small scale operation.

33.  The obtaining of equipment for making forged credit cards from the Mainland and forged credit cards from an American website for use in Hong Kong, in my view, gives the operation an international element[29].

34.  I am satisfied a starting point of 3 years and 9 months’ imprisonment is appropriate on each of charges 2, 3 and 4.

35.  Giving the defendant full credit for his pleas of guilty reduces the sentence on charges 2, 3 and 4 to 2 years and 6 months’ imprisonment. 

Charge 5

36.  Mr Sherry submits that although the defendant admitted that he had the machines with the intention of making credit cards he had been unable to carry that intention out and that no blank cards having been found in his hotel room the operation had not yet advanced to a significant level of sophistication.  Mr Sherry also points out that the machines had not been used[30].  

37.  Whilst there is no evidence that theembossing machine and the bronzing machine were used to produce the forged credit cards the photographs of the hotel room show that the defendant was getting ready to use the machines.  I note in the video recorded interview the defendant said he had picked up the machines the same day he went to Apple and Louis Vuitton[31].

38.  I am satisfied a starting point of 4 years and 6 months’ is appropriate for this charge.  Giving the defendant full credit for his plea of guilty reduces the sentence to 3 years’ imprisonment. 

Totality

39.  Mr Sherry asks that the court take into account that the only evidence on charge 2 is the defendant’s confession and submits to court an email from Apple to the police stating that the two orders were normal transactions and that from a funding perspective no loss could be found[32].  Ms Ma confirms that the only direct evidence on charge 2 is the confession of the defendant. 

40.  In HKSAR v Ma Ming[33] the Court of Appeal held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount.  The court did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge. 

41.  Taking into account all the circumstances I am satisfied that concurrent sentences are appropriate and that a total sentence of 3 years’ imprisonment properly reflects the defendant’s criminality on the four charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[34].  

Sentence

42.  The defendant is convicted and sentenced to concurrent sentences of 2 years and 6 months’ imprisonment on charges 2, 3 and 4 and 3 years’ imprisonment on charge 5.