HKSAR v. HUI CHIU KEUNG

DCCC 4/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 4 OF 2017

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REASONS FOR SENTENCE

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Charges

1.  The defendant pleaded guilty to a total of 8 charges, 6 of which (1^st to 6^th Charges) were Using a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance and the 7^th Charge was Possession of a forged document issued under the Registration of Persons Ordinance, contrary to section 7A(1) of the same Ordinance.  The 8^th Charge to which the defendant pleaded guilty was Possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134, involving 1.08 grammes of methamphetamine hydrochloride, commonly known as “ice”.

2.  Having the defendant admitted the summary of facts supporting the charges, I convicted the defendant as charged accordingly.

Summary of Facts

3.  In respect of 1^st to 6^th Charges, the defendant was basically using the same modus operandi in using 6 different forged identity cards bearing personal particulars of 6 genuine subscribers of mobile phone numbers with a view to obtaining free new mobile phones by extending the term of mobile service contract at 6 different branches of two telecom companies, namely CSL and “3”.

4.  On every occasion, the defendant approached a staff member of the telecom company and told he or she that he was the subscriber of the concerned mobile phone number.  He then requested to have the mobile service contract extended in return for a new mobile phone free of charge.  He also produced a forged identity card, upon demand by the staff, corresponding the personal particulars of the subscriber but with his own photo replaced, every time for the staff’s inspection before processing of the defendant’s application.

5.  For 1^st to 5^th Charges, the defendant succeeded in the application and provided with a new mobile phone free of charge on each occasion.  The total value of the 5 mobile phones concerned was $33,960.

6.  In respect of the 6^th charge, as the staff in question cagily noticed that the colour of the identity card presented by the defendant was darker than normal ones, he reported the matter to the police leading the arrest of the defendant later on 4^th September 2016.

7.  Upon search on the defendant, another forged document of an Acknowledgement of Application for a Hong Kong Permanent Identity Card bearing the same personal particular of the mobile phone subscriber in respect of the 6^th charge was found in his wallet (7^th Charge). Furthermore, 1.08 grammes of dangerous drug commonly known as “ice” was also found between the belt and trousers of the defendant (8^th Charge).

8.  Under caution, the defendant admitted that he had bought the identity card in respect of the 6^th charge and the Acknowledgement in respect of the 7^th charge in mainland and his real name was Hui Chiu Keung. He gave further admission in the subsequent cautioned interview that:-

- A man approached him when he was in Shenzhen in late August 2016 and asked if he wanted to have a set of forged identity documents;

- The man then told him it cost $800 and he agreed to buy 1 set;

- He then passed a photo of himself to the man who handed over the set of forged identity documents to him in the afternoon of the same day;

- On the date of offence of the 6^th charge, he first went to a branch of “3” to see if the identity card could be used. He asked the staff about the outstanding bill of the phone number and the staff then recommended him some promotional plans. He subsequently decided to use the forged ID card to obtain a free mobile phone.

9.  On the other hand, the defendant also admitted the following having been cautioned in respect of the 4^th charge:-

- The forged identity card and the personal particulars were passed to him from a male called Ah Shing whom he met in an amusement game centre in Mong kok in 2016;

- Ah Shing offered a job to him which he took as he was in need of money. In the afternoon on 3 September 2016, Ah Shing passed him an ID card and a phone number and told him to obtain a mobile phone from a telecom shop;

- He pretended to be the person named in the forged ID card and succeeded in obtaining a mobile phone. The mobile phone was then passed to Ah Shing and the defendant was given HKD 1,000. Ah Shing asked the defendant to return the ID card to him the next day.

Mitigation

10.  The defendant is aged 51, a divorcee with a 14-year-old son.  He is currently living with his elder brother.  He worked as a baker, waiter and construction worker before but became unemployed since leaving jail in 2014.  He has been a drug addict of “ice” since 2000.

11.  The defendant has more than 20 criminal records, 10 of which were dangerous drug related.  He was convicted of possession of dangerous drug in September 2016 and was sentenced to 8 months’ imprisonment.

12.  In the written submission of Mr Yip, solicitor for the defendant, the court was told that the defendant had once assisted in the arrest of an African who was subsequently convicted of Rape and Robbery and he did testify for the prosecution at the High Court in February 2016.

13.  It was also mitigated that the defendant admitted the offences at the first opportunities and fully cooperated with the police throughout the investigation.  The defendant was baptized in 2017 and sent a letter to the Correctional Service Department on 14 November 2016 informing his wish to donate his organs after death.

Sentence

14.  The present case concerned multiple use of various forged identity cards by the defendant who is a Kong Hong citizen for the purpose of a deception or committing further offences in Hong Kong.

15.  Obviously, the sentencing guidelines of 15 months’ imprisonment after plea of guilty set out in HKSAR v Li Chang Li [2005] 1 HKLRD 864 is not applicable in the present case as that case related to the possession and use of forged identity cards for the purpose of obtaining employment unlawfully by workers who had no right to work in Hong Kong.

16.  Mr Yip for the defence drew the court attention to the comment made in the case of HKSAR v Chan Man Mo, HCMP 1059/1999, in that it was said by the court that “if he had actually used a forged or somebody else identity card in seeking employment, then a sentence of about a year’s imprisonment would be appropriate even though his presence in Hong Kong was legal at the time of his offence because he was neither an illegal immigrant nor an overstayer.”

17.  With respect, the above submission is not that helpful to the court as that case was in no way close to the present scenario where the defendant, being a Hong Kong citizen, was using the forged identity cards in obtaining properties by deception.

18.  Mr Hui for the prosecution has in this regard helpfully submitted to the court the case of HKSAR v Ye Furen, HCMA 1008/2009, in which Andrew Chan DJ, as he then was, observed that: “If mere possession of forged ID card merits a sentence of 12 months’ imprisonment, the actual use of forged ID card and the commission of further offence, in my opinion, attract another 3 months’ imprisonment.”  In the Ye case, the appellant was sentenced to 15 months’ imprisonment after a guilty plea.

19.  The Ye case was subsequently referred to by a number of cases, one of which was HKSAR v Kwok Siu fai, HCMA 153/2011, in which Stuart Moore DJ, as he then was, made no adverse comment on the 15 months’ imprisonment after a plea of guilty. 

20.  In Kwok case, the Judge also commented that an 18 months’ imprisonment was a perfectly proper starting point for the offence in question which related to the appellant using the forged ID card to obtain mobile services.  In that case, his Lordship also referred to the case of HKSAR v Lau Kam Ling, HCMA 223/2010 in which P Li DJ, as he then was, took a starting point of 15 months’ imprisonment for the offence of local resident using a forged identity card to commit further crimes.  In Kwok case Stuart Moore DJ further examined the authorities that had been gone through in the Lau case and found that 15 months’ imprisonment had been adopted as the sentence both after trial and after guilty plea.  He lastly emphasized that 15 months’ imprisonment was not to be regarded as a standard starting point for sentencing offenders who had used a forged ID card.

21.  Apart from the above sentencing consideration, I have considered the following factors in the present case when sentencing:-

- The modus operandi of the defendant in committing the presents offence;

- The number of times of offending (6 times) in the present case;

- The overall period of offending (from 28 August to 4 September 2016);

- The total sum of properties deceitfully obtained by the defendant ($33,960 in total regardless of the pre-payment)

- Background and all the mitigation put forward on behalf of the defendant.

22.  Having considered all the circumstances, I impose the following sentences:-

Charge 1: 15 months’ imprisonment as the starting point, reduced to 10 months after 1/3 discount given the guilty plea.

Charge 2: 15 months’ imprisonment as the starting point, reduced to 10 months after 1/3 discount given the guilty plea. 3 months of which will run consecutively to the sentence of charge 1 due to totality principle.

Charge 3: 15 months’ imprisonment as the starting point, reduced to 10 months after 1/3 discount given the guilty plea. 3 months of which will run consecutively to the sentence of charges 1 and 2 due to totality principle.

Charge 4: 15 months’ imprisonment as the starting point, reduced to 10 months after 1/3 discount given the guilty plea. 3 months of which will run consecutively to the sentence of charges 1 to 3 due to totality principle.

Charge 5: 15 months’ imprisonment as the starting point, reduced to 10 months after 1/3 discount given the guilty plea. 3 months of which will run consecutively to the sentence of charges 1 to 4 due to totality principle.

Charge 6: 15 months’ imprisonment as the starting point, reduced to 10 months after 1/3 discount given the guilty plea. 3 months of which will run consecutively to the sentence of charges 1 to 5 due to totality principle.

Charge 7: I take 12 months’ imprisonment as the starting point, reduced to 8 months after 1/3 discount for his guilty plea. 1 month of which is to be served consecutively to the sentence of other charges;

Charge 8: Having consider the quantity and nature of the drug found in the defendant and his previous similar convictions, I take 6 months’ imprisonment as the starting point. It is reduced to 4 months after plea of guilty. Given the totality principle, I order 3 months of the same to be served consecutively to other sentences.

23.  The total sentence is therefore 29 months’ imprisonment[1].

24.  The defendant is currently serving a term of 8 months’ imprisonment. Given the totality principle, I order 27 months of the present sentence to be served consecutively to the existing sentence he is serving.