HKSAR v. LI CHI LOK, GERALD AND OTHERS

DCCC235/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 235 OF 2010

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Reasons for Sentence

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1.  I will deal with these two cases separately at first and together at the very end when I decide my sentence.

2.  I turn to case DCCC236/10.  236 case involves Tsui, D1, Wong, D2, Cheah, D3, Cho, D4.  All four defendants pleaded guilty to the first charge of conspiracy to use false instruments, which were forged credit cards, contrary to sections 73, 159A and 159(C) of the Crimes Ordinance. 

3.  They(D1 – D4) admitted that between 11 December 2009 and 13 December 2009, in Hong Kong, they conspired to use nine forged credit cards which they knew to be false with the intention of inducing others to accept them as genuine, and by reason of so accepting them to do or not to do some act to their own or any other person’s prejudice.

4.  The 3rd defendant, Cheah, also pleaded guilty the second charge of possessing false instruments contrary to section 75(1) of the Crimes Ordinance.  He admitted that on 11 December 2009, in Hong Kong, he had in his custody three forged credit cards.

5.  The 4th defendant, Cho, also pleaded guilty to the 3rd charge of possessing false instruments contrary to section 75(1) of the Crimes Ordinance.  He admitted that on 13 December 2009, in Hong Kong, he had in his custody three forged credit cards.

6.  On 10 December 2009, the 3rd and 4th defendants, Cheah and Cho, two Malaysians, arrived in Hong Kong with a number of forged credit cards.  They were met by D1 and D2, Tsui and Wong, at the airport and brought to a hotel in Jordan.  Between the 11th and 13th December 2009, Tsui and Wong led them to make purchases with those forged credit cards in various places around Hong Kong.

7.  Over those three days, the 3rd defendant purchased $1,239 worth of goods with some of the forged credit cards and D4 purchased goods to the value of $4,846.  The total purchase of goods was $6,085 made by the 3rd and 4th defendants.

8.  The 3rd defendant had also attempted to purchase goods to the value of $123,583, which was not successful using these forged credit cards.

9.  The 4th defendant had also attempted to make a purchase with one of the forged credit cards to the value of $3,980, but was not successful.

10.  The total value of unsuccessful attempted transactions between the 3rd and 4th defendants was $127,563.

11.  The 3rd defendant was arrested while attempting to make a purchase on 11 December 2009.  In his possession were a further three forged credit cards.  A wallet purchased by the 3rd defendant with a forged credit card was recovered from the 3rd defendant.

12.  The 4th defendant was arrested on 13 December, at the time of his arrest he had a further three forged credit cards in his possession.  The wallet purchased by the 4th defendant with the forged credit card was recovered.  CCTV images were captured of the defendants making purchases.

13.  Those cards in the possession of the 3rd and 4th defendants are the subject matter of Charges 2 and 3.

14.  The 1st defendant admitted that he was responsible for receiving the goods purchased.  The 2nd defendant admitted to taking the Malaysians to make purchases on the 11th, 12th and 13th December.

15.  As the two defendants in DCCC236, Tsui and Wong, are also charged in case DCCC235/10, I turn now to the case of 235.  In case 235, Tsui and Wong are the 2nd and 3rd defendants respectively, charged together with Li Chi-lok, Gerald, the 1st defendant.

16.  The three defendants all pleaded guilty to the 1st charge of conspiracy to use false instruments, contrary to sections 73, 159A and 159(C) of the Crimes Ordinance.   They admitted that on 17 December 2009, in Hong Kong, they conspired together to use three forged credit cards which they knew to be false with the intention of inducing others to accept them as genuine, and by reason of so accepting them to do or not to do some act to their own or any other person’s prejudice.

17.  Wong, the 3rd defendant, pleaded guilty to Charge 2, which was possessing false instruments, contrary to section 75(1) of the Crimes Ordinance, whereby he admitted that on 17 December 2009, in Hong Kong, he had in his custody five forged credit cards with the intention that he or another would use them.

18.  At 10.10 am on 17 December 2009, police officers were on duty at the Lok Ma Chau Spur Line Control Point.  They had spotted the 2nd and 3rd defendants acting furtively at the arrival hall, that is Tsui and Wong.  They followed Wong to a restaurant in Mongkok. 

19.  In Mongkok at about 11.35 am the 1st defendant, Gerald Li met up with the 2nd and 3rd defendants. Thereafter, the 1st defendant went on a shopping spree with the forged credit cards, purchasing various goods.  D2 and D3 were with him throughout.  The total value of goods purchased by the 1st defendant with the forged credit cards was $8,235.

20.  The defendants were arrested by officers later that day at about 2 o’clock at the MTR station. 

21.  The goods purchased were recovered from the defendants and five forged credit cards were found in Wong, D3’s rucksack, which is the subject matter of Charge 2.  They were in the name of Cheah Hong-fei, which is the 3rd defendant in case DCCC236, that is one of the Malaysians.  I suppose that maybe one of the reasons these two cases have been brought up together.

22.  Under caution, Gerald Li, the 1st defendant, admitted that the three cards were collected by him under the instructions given by Ah Sang.

23.  D2, Tsui, admitted that Ah Sang told him he would purchase a lot of goods in Hong Kong and offered to give him HK$500 as daily salary if he could help him to carry those goods. D2 admitted he had gone to meet D1 and D3 and D1 went to collect the credit cards from D3.  He was responsible for receiving the purchased goods with a daily reward of HK$500 given by D3.

24.  D3 admitted that he had instructed D1, that is Wong had instructed Li to use the forged credit cards and that he, D3 and D1 would receive 5 per cent and 10 per cent of the purchase price as reward respectively.  D3 would also receive HK$500 a day.  He had collected the forged credit cards, the subject matter of Charge 2, from a Malaysian.

25.  I have taken into account mitigation put forward by counsel for all defendants in this case - Mr Simon Yip for Li Chi-lok in case 235; Mr Stephen Wong for Tsui Wai-kuen, that is D1 in 236 and D2 in 235; Mr Phillip Ross for Wong Kai-sang, D2 in 236 and D3 in 235; and Miss Peony Wong for Cheah Hong-fei and Cho Chee-wah for D3 and D4 in case 236.

26.  I will turn to deal with the defendants’ antecedents.

27.  For Tsui Wai-kuen, counsel, Mr Stephen Wong, mitigated on his behalf.  Mr Tsui is aged 41.  He has a clear record and, in a nutshell, as a result of his income declining in the year 2009 to only about $2,000 a month, he was recruited by Wong in this case to work, committing the present offences.  He was to be given about $500 a day for his work. 

28.  Mr Wong says that Tsui played a role of an assistant to Wong.  He did not know who the boss was behind these forged credit cards.  He was given instructions by Wong and he was the person who took care of the goods after they were purchased and thereafter Tsui did not know who the person was who would come to collect the goods but he would then give the goods to that person.  That was in case 235.

29.  In case 236, Tsui accepts that he went to the airport to collect the Malaysians, took them to the hotel and was responsible for taking them around for their so-called shopping spree. 

30.  Mr Wong says his strongest mitigating factor, which I fully accept, is his plea of guilty.  I will take the above matters into account.

31.  For Mr Wong Kai-sang, counsel, Mr Phillip Ross, mitigated on his behalf.  Mr Wong is aged 45, has one previous but is long-spent in 1987 of assault occasioning actual bodily harm, which I shall not take into account in my sentencing.

32.  Mr Wong had emigrated to Australia sometime in 1988 but since returned to Hong Kong in 2005, however for the past year he had been unemployed.  He was therefore persuaded by his friends to participate in these offences.

33.  In case number 236, as I say, he admits to receiving a group of Malaysians, and not just limited to the Malaysians D3 and D4, from the airport.

34.  Mr Ross says that he was not the boss here but he admits to being a co-ordinator.  That was his role.  He denies what Tsui has said, that he was the boss.  As to the cards found upon him in 235, he says that he knew that the Malaysian, that is Cheah, D3 in 236, had been arrested and he was given those cards of Cheah by another Malaysian as they were useless.  He simply had not disposed of them but they were nevertheless valueless to the syndicate.

35.  Mr Ross says that Wong’s role was really an escort to these Malaysians, taking them around the shops and his role was readily replaceable by someone else.  He did not play a major role.  As admitted by Wong, he received $500 a day plus the commission.

36.  Again, in this case, his greatest plea of mitigation is his plea of guilty.

37.  For the 3rd and 4th defendants, that is Cheah Hong-fei and Cho Chee-wah, Miss Peony Wong, counsel, has mitigated very thoroughly on their behalf.

38.  Cheah is aged 23 and is of clear record.  He is Malaysian and was studying for a Diploma in Journalism in Malaysia. 

39.  I have received a bundle of character references and testimonial letters written on behalf of the 3rd defendant.  Letters include that from the 3rd defendant, the lecturer, the principal, his classmates, and the reverend who visits him in prison in Hong Kong.  In a nutshell, they speak well of the defendant; that he is hardworking and ambitious; he was doing well at his college; he is a well-liked and filial son; very popular at college; and the main reason why he committed this offence was because of lack of funds.  Unfortunately his father, who had assisted him in paying for his education, had an accident and was no longer able to assist him financially.  His mother had debts of her own, to which he was also trying to repay on her behalf.  He was therefore led astray.  He had agreed to commit this offence so as to assist in his funds.

40.  He had agreed to give evidence against Tsui and Wong in this case and had given a witness statement to the police.  However, before he was able to assist, Tsui and Wong had pleaded guilty. 

41.  Again, his greatest mitigation is his plea of guilty, which has clearly shown his remorse.

42.  For D4, Mr Cho, he is aged 50, of clear record.  He has also written a letter to the court in mitigation expressing his remorse.  He had committed this crime as he was in debt because he had to pay for his mother’s funeral expenses.  He too gave witness statements to the police in Hong Kong and was willing to give evidence against his co-accused if necessary.

43.  Miss Wong submitted that these two defendants were mere cogs in the wheel.

44.  As for D1 in 235, that is Li Chi-lok, Gerald, Mr Simon Yip, counsel, mitigated on his behalf.

45.  He is aged 32, of clear record, and he has also submitted to me a bundle of character references and letters from his parents, people who have known him since he was young, his aunt, all stating that the defendant is a responsible, trustworthy person, who works hard and, in a nutshell, this was an isolated incident and he was influenced by his bad peers.  As a result of the defendant not having employment, he was led astray by his peers and he committed this offence.  He played  a minor role in these offences and was the one purchasing the goods on instructions of others.

46.  Looking at these two cases on the whole, these are clearly cases offences involving forged credit cards.  What is clear from the facts before me is that the two Malaysians and Gerald Li were the persons who were using the forged credit cards to purchase goods.  Wong and Tsui were the persons behind them collecting the goods and taking them around to purchase the goods.  Wong and Tsui were also the two who collected the goods, which were then passed on to somebody else.

47.  All counsel have submitted to me, and I accept, that these defendants did not play a major role in this offence.  I have been referred to the case of R v Chan Sui To, which I accept is a guiding case on the factors to be considered when considering credit card fraud. 

48.  What I must consider is the size of the operation; whether it involved large sums of money; or whether it concerned a large number of persons or forged credit cards; the planning that had gone into perpetrating the fraud, whether it was elaborate or simple; whether there was an international dimension; whether the accused played a major role, for example, whether he was running a syndicate engaged in actual manufacture or organising the use of forged credit cards, or whether he was a mere cog in the wheel as a courier, a custodian or keeper.

49.  In considering these factors, I turn to look at case number 236.

50.  There were not particularly large sums of money involved in the actual purchase, that is some $6,000-odd.  However, the attempted transactions was quite large, it was about $127,000. 

51.  In this case, there were four defendants involved, the two from Malaysia and the two from Hong Kong.  The Malaysians had come with the forged credit cards.  Their sole purpose to come to Hong Kong was to commit these offences.  There was an international dimension.  I accept in this case however that neither of the accused played a major role.  The Malaysians were the users of the card, the cog in the wheel, and the 1st and 2nd defendants were the people showing them around.  there were nine credit cards involved in Charge 1. 

52.  In case 235, again the 1st defendant, Li, was the user of the credit card, and the value of the goods purchased was some $8,000-odd.  There does not appear to be an international dimension here, and again in this case, the other two defendants, Tsui and Wong, were there collecting the goods and accompanying Li around the shops.

53.  Taking all these factors into account, taking into account most importantly their clear records and their plea of guilty, I pass the following sentences.

54.  In case number 236, Charge 1.  I take a starting point of 3½ years imprisonment for all defendants and reduce that term to one of 2 years 4 months’ imprisonment to reflect your pleas of guilty.

55.  For D3, Charge 2, I take a starting point of 3 years’ imprisonment and reduce that term to one of 2 years’ imprisonment to reflect your plea of guilty.

56.  For Charge 3 for D4, I take a starting point of 3 years’ imprisonment and reduce that term to one of 2 years’ imprisonment.

57.  For the 3rd and 4th defendants, that is for Cheah and Cho, I have taken into account that you both gave witness statements to the police and were willing to assist the police, and I am informed by Miss Wong that the information given was useful, and you had obviously put yourselves at risk, and I am prepared to take that into consideration in my sentence.

58.  I take into account the principle of totality.  For D3 and D4, I would have ordered 2 months to run consecutive on Charges 2 and 3 to Charge 1.  However, given the fact that you were willing to assist, I reduce that to one month, so one month of Charges 2 and 3 are to run consecutive to Charge 1, making your total term of imprisonment to be 2 years 5 months’ imprisonment.

59.  To clarify, D1 and D2, your sentence is 2 years 4 months.  D3 & D4 your sentence is 2 years 5 months.

60.  Now I turn to case 235.

61.  Again, I follow the case of Chan Sui To and also Tu I Lang, CACC464/2006, in regard to the factors the courts take into account.

62.  For the 1st charge, there were three forged credit cards involved.  I take a starting point there for the 1st charge for the three defendants of 3 years’ imprisonment.  I give you full credit for your pleas of guilty and reduce that term to 2 years’ imprisonment.

63.  For Charge 2 on D3, I take a starting point of 3 years’ imprisonment and reduce that term to one of 2 years’ imprisonment. 

64.  I take into account here the principle of totality for D3.  In Charge 2 there were five forged credit cards, there was a huge potential for further loss.  I do not accept that you just did not dispose of those credit cards.  They may well have been used.  I accept, however, that the name or the person with whose name on that credit card was already arrested when they were found in your possession. There were five forged credit cards, I consider appropriate a consecutive sentence of 2 months imprisonment on Charge 2. 

65.  In case 235/10.  For D1 and D2, you are sentenced to 2 years imprisonment, and D3, 2 years 2 months imprisonment.

66.  Now I turn to look at the principles of totality for Tsui and Wong.

67.  I sentenced you both in 236 to 2 years 4 months, and in 235, Tsui, to 2 years, and Wong to 2 years 2 months. 

68.  Having taken into account the principle of totality, these were separate and distinct offences committed on different occasions and I consider a partly consecutive sentence to be warranted.  I consider that a further 6 months is to be served consecutive, that is 6 months of 235 to be served consecutive to 236.  That would make a total sentence of 2 years 10 months’ imprisonment total in those two cases for you Wong & Tsui.