HKSAR v.TAN CHEE-HOWE AND ANOTHER

DCCC 843/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 843 OF 2013

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Reasons for Sentence

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1.  This is a credit card fraud case involving 2 Malaysian defendants, D1- Tan Chee Howe and D2- Neon Hooi Mei. Both D1 and D2 pleaded guilty to one count of conspiracy to use false instruments (Charge 1), namely forged credit cards, and additionally each of them admitted one further offence of possessing false instruments; 3 cards in D1’s case (Charge 2) and 5 cards plus a forged Singaporean ID card in D2’s case (Charge 3).

2.  On the afternoon of 3 June 2013, the defendants came to Hong Kong via Lo Wu Control Point within 15 minutes of each other with D2 being the first to enter. The police tailed D1 all the way to Hung Hom train station where they saw him meet up with D2 and another man. Later, D2 entered a nearby shop and successfully purchased some cosmetics products worth $3,270 with a forged credit card, and then gave her purchase straightaway to D1 after rejoining the men who were waiting outside in the vicinity.

3.  The trio then moved to another shop situated at the Tsim Sha Tsui East station where they practised the fraud like how it was before. This time the police took action; when D2 was coming out of the shop, police officers stopped all three of them at the scene for questioning.

4.  Upon searching, the police found on D1’s possession the earlier purchase made by D2 and 3 forged Visa cards all in the name of K P Lim ( two Standard Chartered Bank and one RBS), and on D2’s possession 5 forged Master cards all in the name of Neoh Hong Min (2 Citibank, 2 Chase and one Chase Freedom) together with a forged Singaporean identity card bearing the same name as appearing on the Master cards but another person’s photo.

5.  The defendants flew to Hong Kong on separate day- D1 on 26 April 2013 and D2 on 10 May 2013; the immigration records also revealed that both defendants had made numerous day-return trips to Hong Kong from the Mainland- 18 times within a 23-day period between 11 May and 2 June (the day before their arrest).

6.  Both defendants, in their early 30s, are persons of previous good character. Both counsel have taken me through the background of the defendants and the circumstances in which they came to commit the offences. Counsel for D1 stressed that D1 did not commit the offences out of greed but rather his inability to live within his income. D1’s role, counsel submitted, was only involved in the delivery of forged credit cards to other persons upon instructions and to handle the goods bought with the cards, and he would be paid 5 to 10 % of the value of the goods.

7.  Counsel for D1 said that this was the first time D1 committed the offences and explained why he made so many visits to Hong Kong because he had to finance his stay in the Mainland by carrying parallel goods to the Mainland.

8.  D2 in fact is related to D1 who is the husband of D2’s elder sister. Because of the relationship, counsel for D2 submitted, D2 simply trusted D1. Counsel said that any fraudulent scheme must have been carefully planned but emphasized that D2 was not involved in any of the planning; she just acted on the instructions of D1.

9.  On the evidence before the court, clearly there were some criminals behind all this. They would pay the defendants to run errand for them to make purchase with forged credit cards and to return the loots to them. Even if accepting the roles as the defendants claimed to have played, such roles were significant in that the enterprise needed people like the defendants in order to be successful in the fraud.

10.  Disagreeing with counsel’s submission, I do think that this is a case with an international dimension- all the cards are related to foreign accounts. Moreover, both defendants are foreign nationals (Malaysians) and one of them was also armed with a forged identity card of another foreign country (Singapore).

11.  As far as mitigation is concerned, apart from their pleas of guilty, there aren’t any mitigating factors of substance.

12.  In the case of Kita Yasushi and another CACC 470/2006, the Court of Appeal said the following, “In the instant case, whether or not an organised syndicate from outside Hong Kong was involved, we are satisfied that there was a sufficient international element to have provided justification on the part of the judge for regarding this as an aggravating feature…………”  The appellate court has approved a starting point of 3½ years in Yasushi’s case.

13.  Given the fact of the present case with an international element, I’ll take 3½ years as starting point for each of the offence, and reduce it to 2 years and 4 months to reflect their pleas.

14.  In D1’s case, I’ll order the terms to run concurrently with each other because only forged credit cards have been found in his possession; therefore his total term is one of 2 years and 4 months.

15.  However, in D2’s case, she was found to have a forged Singaporean identity card in addition to forged credit cards. On the authority of Yasushi’s case (there 4 months of a 12-month term for forged passport offence were added on top of the fraud charge), I’ll order that 4 months of charge 3 should run consecutively to charge 1. D2 is therefore sentenced to a total term of 2 years and 8 months.

16.  Finally, regarding compensation, it is clear from the disposal of exhibits suggested by the prosecution that the purchase made with the forged credit card, albeit recovered, will be confiscated to the Government. In the circumstances, some party must have suffered loss as a result and it is the bank in the present case.

17.  Upon arrest, the police found HK$ 100 and HK$ 3,472 on D1 and D2 respectively. D2 through her counsel indicates that she is willing to compensate the bank for the loss. By virtue of s73 of the Criminal Procedures Ordinance, I order that D2 should pay compensation in the sum of HK$ 3,270 to HSBC Bank USA and such sum should be paid out of D2’s prisoner property.