HKSAR v. LAI ZHI HONG

DCCC 338/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 338 OF 2017

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REASONS FOR SENTENCE

1.  The defendant pleaded guilty to 12 charges of "Using a false instrument" (Charges 1 to 12) and 1 charge of "Possessing false instruments" (Charge 13). He used forged credit cards to purchase or attempt to purchase consumer goods at retail shops with an aggregate value of almost $347,000.

Summary of Facts

2.  The defendant is a Malaysian passport holder.  He entered Hong Kong through the airport around noon on 18 January 2017.

Charge 1

3.  About 1:30 p.m. on 18 January 2017, the defendant was in a duty free shop at the airport purchasing 2 bottles of liquor (valued at $21,195 in total).  He produced a forged Citibank VISA credit card bearing the name "LAI ZHI HONG" (Card 1) to a salesperson Madam YING (PW1) and the transaction was successful.  The incident was captured by CCTV.  PW1 subsequently identified the defendant at an ID Parade.

Charge 2

4.  About 8:30 p.m. on 18 January 2017, the defendant was at a hotel in Tsim Sha Tsui.  He produced Card 1 to a receptionist Mr. WONG (PW2) to book a room for 3 nights (valued at $5,785) and the transaction was successful.  The incident was captured by CCTV.  PW2 subsequently identified the defendant at an ID Parade.

Charge 3

5.  About 11:50 p.m. on 18 January 2017, the defendant and another male CHIN (WP) were at a convenience store situated at Ichang Street, Tsim Sha Tsui.  The defendant produced Card 1 to a store attendant HO to purchase some food items (valued at $476.60 in total) and the transaction was successful.  The incident was captured by CCTV.

Charge 4

6.  About 12:20 p.m. on 19 January 2017, the defendant was at a ticketing counter at China Hong Kong City. He produced a forged USAA MasterCard bearing the name "LAI ZHI HONG" to a counter agent CHEN to purchase a one-way ferry ticket from Hong Kong to Macau departing at 11:15 a.m. the following day (valued at $224) and the transaction was successful.  The incident was captured by CCTV.

Charges 5 to 8

7.  About 12:30 p.m. on 19 January 2017, the defendant was at a watch shop at China Hong Kong City.  He produced a total of 4 forged credit cards (namely 2 American Express Cards, 1 Citibank credit card and 1 HSBC credit card) all bearing the name "LAI ZHI HONG" to a salesperson Madam LEE (PW5) in order to purchase 2 watches (valued at $213,500 in total), but all 4 transactions were unsuccessful.  The incident was captured by CCTV.  PW5 subsequently identified the defendant at an ID Parade.

Charges 9 and 10

8.  About 1:45 p.m. on 19 January 2017, the defendant was at the Apple Store situated at Canton Road, Tsim Sha Tsui.  He produced a total of 2 forged credit cards (namely Card 1 and 1 HSBC VISA card) both bearing the name "LAI ZHI HONG" to a salesperson to purchase electronic products, namely 1 Macbook Pro, 1 iPad, 1 Smart keyboard for iPad, 2 iPhone 7 and 1 Apple Care warranty (valued at $41,876.50 in total) and the 2 transactions were successful.  The incident was captured by CCTV.

Charges 11 and 12

9.  About 2:30 p.m. on 19 January 2017, the defendant was at a watch shop situated at Manley House, Tsim Sha Tsui.  He produced a total of 2 forged credit cards (namely 1 Citibank VISA card and 1 American Express card) both bearing the name "LAI ZHI HONG" to a salesperson Madam LAM (PW6) in order to purchase a Rolex watch (valued at $63,900), but both transactions were unsuccessful.

10.  Feeling suspicious, PW6 alerted the Police.  PC 4515 went to the shop and arrested the defendant after making some enquiries.

Charge 13

11.  Upon search, a total of 19 credit cards, all bearing the defendant's name, were found on him.

12.  Upon examination by experts, all 19 credit cards were found to be forged.  The data stored in the cards originated from the United States, China and India.

Summary of Transactions

13.  Within 2 days, the defendant used or attempted to use a total of 9 forged credit cards to purchase consumer products with an aggregate value of almost $347,000 (out of which almost $70,000 worth of products were successfully purchased).

Admissions

14.  In gist, the defendant admitted under caution that someone named "Uncle AU" in Malaysia asked him to come to Hong Kong to shop using forged credit cards.  The defendant would receive 30% of the value of the successful purchase as his reward.  Upon arrival at Hong Kong, the defendant followed the instructions of 2 Malaysian Chinese ("X.O." and "Ah Haw") in terms of where to go and what to buy.  He communicated with them through a cell phone app named "WeChat".

15.  The defendant claimed that WP is a friend from Malaysia, but did not know anything about him shopping with forged credit cards.  WP only helped bringing the Apple products back to the hotel.  The defendant had no idea where WP had gone after he was arrested.

Mitigation & Sentence

16.  The defendant is now 26 and has a clear record.  Defence solicitor Mr. CHEUNG informed me that the defendant is single and a renovation worker in Malaysia earning equivalent to HK$2,000 per month.

17.  In mitigation, Mr. CHEUNG submitted that the defendant pleaded guilty to all charges and cooperated with the Police throughout the investigation.  Mr. CHEUNG stressed that the defendant was not the mastermind but merely a foot solider.  A letter written by the defendant was placed before me; its contents are duly noted.

18.  According to the relevant authorities on sentencing[1], credit card offences are serious and must be deterred.  Even a small scale credit card fraud with small losses by an offender who is not alleged to be part of a larger syndicate can attract a starting point of 3 years' imprisonment.  In HKSAR v CHEN Wing Hong CACC 40/2005, the Court of Appeal observed that "… in this day and age the integrity of the credit card system is highly important and those who attempt to beat the system by fraudulent methods necessarily erode the confidence which people are entitled to place on this aspect of modern commercial life."[2]

19.  I note that all 19 credit cards are in the defendant's name.  Based on his admissions, the defendant was clearly manipulated by a counterfeit credit card syndicate.

20.  When people realize that the court would not treat "foot soldiers" of counterfeit credit card syndicates lightly, there would be, hopefully, fewer willing "shoppers"; thus making it difficult for those syndicates to exploit people like the defendant.

21.  When determining the proper starting point for Charges 1 to 13, I have borne in mind the sentencing principles laid down in The Queen v CHAN Sui-to [1996] 2 HKCLR 128.  In the present case, I find the following features exist :

(i) some degree of advance planning was required (for example, making the forged credit cards bearing the defendant's name; arranging for his trip to Hong Kong and controlling his purchasing activities);

(ii) a cross-border element is involved;

(iii) the defendant was given clear instructions as to where to go and what to buy using those 19 forged credit cards in Hong Kong;

(iv) the defendant made admissions upon arrest and pleaded guilty to all charges; and

(v) the goods involved in the successful transactions were not recovered.

22.  The defendant successfully purchased goods and services in a total sum of almost $70,000 using 9 forged credit cards.  He was in possession of another 10 forged credit cards.  At least 4 persons (not counting WP) were involved.  This is by all means a medium-sized operation.  If PW6 did not alert the Police, the defendant could have made further successful purchases, a fact which I cannot overlook.

23.  Based on the reasons stated above, I adopt a starting point of 4 years' imprisonment for each charge.  A one-third discount is given for the guilty plea, reducing the sentence to 32 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  Hence, I sentence the defendant to 32 months' imprisonment for each charge.

24.  Bearing in mind the totality principle, I consider a global starting point of 5 years to be appropriate for all 13 charges.  With the guilty pleas, the overall sentence is reduced to 40 months.  I order the sentences to run in the following manner :-

(i) Charges 1 to 3 concurrent;

(ii) Charges 4 to 8 concurrent; but 2 months consecutive to Charges 1 to 3;

(iii) Charges 9 and 10 concurrent; but 2 months consecutive to Charges 1 to 8;

(iv) Charges 11 and 12 concurrent; but 2 months consecutive to Charges 1 to 10; and

(v) 2 months in Charge 13 consecutive to Charges 1 to 12.

Thus, arriving at a total prison term of 40 months.