HKSAR v. OOI CHIN-AIK

DCCC 504/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 504 OF 2012

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Using a false instrument" (Charge 1) and a charge of "Possessing a false instrument" (Charge 2). Each charge involves 1 forged credit card.

Summary of Facts

2. The defendant entered Hong Kong about 1:00 pm on 14 April 2012 at Lo Wu using a Malaysian passport.

Charge 1

3. About 2:40 pm on the same day, the defendant was at the SOGO Department Store in Tsim Sha Tsui.  He tried to purchase a $7,950 handbag.  He presented a National Bank of Abu Dhabi Visa card in the name of "DALE OOI C A" (Card 1) to a saleslady.  The saleslady suspected it to be false and sought confirmation from the card centre. Meanwhile, the defendant left the store without obtaining Card 1 back.  He was intercepted by a security guard outside the store.  The Police was alerted.

Charge 2

4. Upon search by the Police, 3 more credit cards including a Chase Freedom Visa card in the name of "DALE OOI C A" (Card 2) were found in the defendant's wallet.  Under caution, the defendant admitted that he owed money in Malaysia and the loanshark gave him the 4 credit cards to make purchases in Hong Kong.

5. In his video recorded interview, the defendant admitted, inter aila, that he did not apply for the 4 credit cards, but has given his personal particulars to the loanshark.  The loanshark gave him the 4 credit cards at the airport in Malaysia and instructed him to use them to make purchases in Hong Kong.  The defendant would then take the merchandise back to Malaysia.

6. Upon examination, Cards 1 and 2 were found to be forged, but the authenticity of the other 2 credit cards could not be determined.

Mitigation & Sentence

7. The defendant is now 31 and has a clear record.  He is a Malaysian citizen.  Defence lawyer Ms. CHAN informed me that the defendant has a very unusual family background.  He was raised and adopted by his maternal aunt.  His aunt later married someone, who became his stepfather.  The defendant has 2 younger sisters (aged 17 and 12), but they are not blood related.  Despite such a complicated mystery, the defendant has a loving and caring family.

8. The defendant has lived in a poor family all his life.  His adopted father passed away 4 years ago.  His aunt/adopted mother is now 69 years old and has stopped working 2 years ago.  Ms. CHAN submitted that the physical condition of the defendant's home is so poor that the government has declared it dangerous.  As a result, the defendant had to borrow money to make the necessary minimum repairs so that his family could continue to live there.  In January this year, the loanshark all of the sudden pressed the defendant for full repayment of his loan.  The defendant was threatened to do whatever the loanshark asks him to do.

9. The loanshark used the defendant's personal particulars to obtain for him a passport, plane tickets and visas to enter China.  The defendant arrived at Hong Kong on 5 April and was immediately escorted to a hostel in Shenzhen.  He was given a mobile phone and was told to answer it when it rings.  Between 5 and 14 April, the defendant was taken to Hong Kong several times for a few hours each.  He was expected to shop each time, but had refused to do so and kept postponing it.  The defendant was due to fly home on 14 April and it was his last chance to shop in Hong Kong.  He was further threatened by the Malaysian loanshark with the safety of his family members.  As a result, the defendant did what he was told.

10. Ms. CHAN submitted that the defendant is a victim himself.  He has reported the loanshark to the Malaysian Police, but nothing was done.  The defendant felt that he had no way out.  Furthermore, the defendant was not involved in the planning of this credit card fraud.  He was only a chess point manipulated by the loanshark.  The defendant has made full and frank admissions to the Hong Kong Police.  Finally, Ms. CHAN submitted the judgment in HKSAR v TU I Lang CACC 464/2006 for my reference.

11. I note that both Cards 1 and 2 are in the defendant's name.  In order to obtain forged credit cards bearing the user's name, some advance planning must be required.  Based on his admissions, the defendant was clearly manipulated by a counterfeit credit card syndicate.  I note that the defendant may have his own "excuse" for committing the offences.  However, the court has, time after time, expressed in very clear terms that being in financial difficulty is no mitigating factor for committing a crime.  I do not know much about the law enforcement in Malaysia, but the defendant could certainly seek help from the Hong Kong Police before he tried to use any of the forged credit cards.

12. According to the relevant sentencing authorities cited in Sentencing in Hong Kong (6^th edition)[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 3 years imprisonment on a guilty plea.  A clear message must be conveyed to the general public that "credit card fraud" is a serious crime and that offenders would be punished by a substantial prison term.

13. When determining the proper starting point for each charge, 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 (though probably not by the defendant), such as making the forged credit cards and arranging for his passage to Hong Kong;

(ii) a clear international element was involved;

(iii) the defendant was instructed to shop with the forged credit cards in Hong Kong and then take the merchandise home to the syndicate;

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

(v) no actual financial loss suffered by the department store.

14. The defendant had only tried to purchase a handbag which is worth $7,950.  Only 1 additional forged credit card was found in his possession.  For Charges 1 and 2, I adopt a starting point of 3 years' imprisonment each.  A one-third discount is given for his guilty pleas, reducing the sentence of each charge to 2 years.  Apart from his guilty pleas, I see no other mitigating factors which warrant any further discount.  The sentence for each charge is 2 years' imprisonment.  Having considered the totality principle, I order the sentences of both charges to run concurrently. Thus, the total term of imprisonment is 2 years.