HKSAR v. TAN BOON LENG

DCCC 525/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 525 OF 2012

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to the charges that he faces, namely 2 counts of using a false instrument, contrary to Section 73 of the Crimes Ordinance, Cap 200.

2.  The offences occurred on the same day, and involved 2 forged credit cards.

3.  Facts admitted by the defendant disclosed that at about 4.20 pm on 7 June, 2011, the defendant visited Kiehl’s Shop at Shop C-15, C Floor, the APM Millennium City 5, No 418 Kwun Tong Road, Kwun Tong.  He purchased some cosmetic products and presented an American Express card in the name of Ang Lai Heng for payment (Count 1).  The staff of the shop told him that American Express cards were not accepted.  The defendant then presented a HSBC Master Card in the same name for payment (Count 2).  The staff member suspected that the two credit cards were forged credit cards.  At this juncture, the defendant fled, leaving behind the two forged credit cards and two advertisement leaflets.  A report was made to the police.  The defendant’s fingerprints were found on the two advertisement leaflets.  CCTV of the shop captured the defendant inside the shop at the material time.  The two cards were examined and confirmed to be forged credit cards.  The defendant was arrested on 23 March 2012 and admitted under caution that he intended to buy the products by forged credit cards but he failed to do so.  In a subsequent cautioned interview, the defendant admitted inter alia that he had brought two forged credit cards to Hong Kong from Malaysia to make purchases on the material day, and the person who gave him the forged credit cards told him to bring the goods back to Malaysia for sale.

4.  The defendant is now aged 27 years.  He is Malaysian and came to Hong Kong from Malaysia on 5 June, 2011.  His family is back in Malaysia.  His parents are divorced, and he lives with his grandmother aged 68 years, his mother aged 45 years who works as a hawker, and a 16 year old sister who is a student.  He was the major provider for his family.  He is educated to Form 5 level.  Since 2006, he has worked as a construction worker installing roofs, and he started his own business in 2009 working as a subcontractor in construction work.  He sustained injuries when he fell off a roof at work, and had to have 2 operations. He was not able to work, and accumulated large debts.  To ease his financial difficulties, he participated in the present offences.  His family in Malaysia is now solely supported by his mother through her work as a hawker.  He is worried about his family and wishes to go home as soon as possible.

5.  The defendant has one previous conviction - on 13 October, 2011, he was convicted of one count of possessing a false instrument in DCCC 849/2011 and sentenced to 2 years’ imprisonment – I am informed that he is due to be released on 10 October, 2012.  Mr Chan for the prosecution has helpfully provided me with a copy of the indictment of DCCC 849/2011, and I have also had sight of the Reasons for Sentence in that matter by my learned brother Deputy Judge Casewell – 3 forged credit cards were involved in DCCC 849/2011 and the offence date was 8 June, 2011 – the present offences were committed on 7 June, 2011 and involved 2 credit cards.  The name of the card holder on the 3 forged credit cards in DCCC 849/2011 was different from that on the 2 forged present cards herein.  At the time of the present offences, the defendant had a clear record.

6.  The defendant’s finger prints were found on the two advertisement leaflets that he left behind at the shop together with the 2 forged credit cards when he fled the shop on 7 June, 2011.  After his arrest for DCCC 849/2011 on 8 June, 2011, his fingerprints were taken and kept on record, and the fingerprints found on the two advertisement leaflets were found to match the defendant’s fingerprints, and he was thus arrested for the present offences on 23 March, 2012.  I am told by Mr Chu for the defendant that the defendant had told the police about his attempt to use the two forged credit cards on 7 June, 2011 when he was arrested in DCCC 849/2011, but he was unable to provide the police with the address of the shop.  Mr Chan for the prosecution is unable to confirm this, but he has quite fairly said that had the prosecution been aware, the charges would have been laid in one indictment.

7.  In HKSAR v Tu I Lang, CACC 464/2006, the Court of Appeal referred to the decision of R v Chan Sui To [1996] 2 HKCLR 128 at 134 :

“8. It is true that in R. v. Chan Sui To [1996] 2 HKCLR 128 at 134, this court said in dealing with the range of sentences imposed for credit card offences in various cases cited to it :

“Allowing for the different facts and the varying degrees of culpability, it is impossible to formulate a set of principles of sentencing from those decisions. We think however that it would be helpful to the courts if they were guided by some criterion. We would therefore suggest that an accused who plays an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of five to six years after trial. Sentences may be adjusted upwards or downwards according to the circumstances.”

It is equally true that in a number of other cases involving the simple possession or use of a small number of credit cards, this court has approved starting point of sentences of three years’ imprisonment, where the operation involved can be fairly described as small scale.”

The Court further said:-

“10. Where the facts of the offence point to a small unsophisticated operation, involving only one or a few forged cards uncomplicated by other evidence linking the offender to a larger operation, then a starting point of three years’ imprisonment or less would be appropriate.”

8.  Offences involving forged credit cards are all serious offences.  I need only to quote the judgment of Litton JA in R v Kwan Ying-ho, CACC 527/1992 that:

“Credit card frauds have in recent years been an insidious poison in the community. It affects a large number of citizens. It erodes the credit card system and damages Hong Kong’s standing in the international community.”

9.  In HKSAR v Cheung Ka-wo, Johnny, CACC 136/2001, Stuart Moore, V-P, in dismissing an appeal on similar charges as herein where a starting point of 3 years’ imprisonment was used, said:-

“11. It is well known that in this jurisdiction severe sentences are given to those who commit offences of the kind with which we are presently concerned as a deterrent to others who are like-minded. One justification for this is that the integrity of the credit card system is highly important in this day and age and the confidence which people, as Mr. Madigan pointed out in the course of his argument, are entitled to place on this aspect of modern commercial life is necessarily eroded by others who attempt to beat the system by fraudulent methods.”

10.  For the purpose of sentence, I am prepared to accept the account given to the police by the defendant.   It follows that he was not part of a syndicate involved in using forged credit cards to obtain goods. I find that there is an international dimension.  The defendant brought these forged credit cards from Malaysia to Hong Kong to use them here in Hong Kong and to bring the goods purchased using the forged credit cards back to Malaysia for sale.  In HKSAR v Hoong Pang Chong, CACC 344/2011, the Court of Appeal held that the starting point of 3 years’ imprisonment should be increased by another 6 months’ to reflect  the international element.  Although the value of the goods to be purchased using the forged cards was not large, it is the potential for loss which is the most important consideration.

11.  The defendant may have been a mere cog in this operation.  However, the people who go into the shops to make the purchases are the vital cogs.  Without these persons being prepared to go into the shops to buy the goods, the whole point of the forgery fails.  So the people who use forged credit cards in this way have got to be deterred, and because of that, the court takes a very serious view of people who do what the defendant herein did.

12.  It was only because of the vigilance of the staff at the shop who were suspicious about the cards that the defendant became agitated and left the shop. Had the cards not been kept by the staff of the shop, the card in my view would no doubt have been used elsewhere to obtain further goods. He was arrested the following day in DCCC 849/2011 with another three forged credit cards.

13.  The only mitigation of weight before me really is the defendant’s pleas of guilty, which reflect his remorse. I have borne in mind all that has been urged upon me in mitigation on behalf of the defendant, as well as the contents of the two letters written by the defendant.

14.  On each of these charges, in my view an appropriate starting point is 3 years and 6 months’ imprisonment.  Giving the defendant a discount of one third to reflect his pleas, he should be sentenced to 28 months’ imprisonment on each charge, to be concurrent.  But I have to consider that had the present offences come to light earlier, most likely these charges would have been brought at the same time as those in DCCC 849/2011. It is not clear why it was not until March 2012 that the defendant was arrested for the present offences.  In my view, the overall criminality of DCCC 849/2011 and the present offences together warrants a total of 3 years’ imprisonment. Bearing in mind the totality principle of sentence, I would have ordered that 12 months’ of the present sentence be consecutive to that of DCCC 849/2011.  He is due to be released in October 2012, after serving the equivalent of a sentence of 2 years’ imprisonment.  In the circumstances, I shall sentence the defendant to 12 months’ imprisonment on each of the charges that he has admitted, to be concurrent, but consecutive to the sentences that he is currently serving.