HKSAR v. TAN KIAN JOO

DCCC 206/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.206 OF 2013

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Reasons for Sentence

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1. The defendant pleaded guilty to two charges of ‘Using a false instrument’ and one charge of ‘Possessing false instruments’, contrary to s.73 and s.75(1) of the Crimes Ordinance, Cap.200 respectively.

Facts

Charge 1 and 2

2. In the evening of 27^th December 2012, the defendant presented a credit card bearing the name “Jeon Kian Joo Tan” to the salesperson of the Louis Vuitton shop situated at no.5 Canton Road in Tsim Sha Tsui for the purchase of a handbag and a wallet with a total value of $16,400. This card was rejected and was later confirmed to be a counterfeit credit card (charge 1).

3. Upon the rejection of the first credit card, the defendant presented another credit card bearing the same name as the first credit card to try to pay for the purchase. Staff members of the shop called the credit card centre and was told that there was a problem with the second credit card as well. This credit card was later confirmed to be a forged credit card (charge 2).

Charge 3

4. The defendant left the shop while the second credit card was being checked. Staff of the shop followed the defendant and notified 2 plainclothes Police officers who happened to be in the vicinity. The defendant was stopped at Peking Road by the Police officers.

5. Upon search, 6 credit cards were found in the defendant’s wallet, including the first credit card that the defendant had used in the shop. They all bore the name of “Jeon Kian Joo Tan”. One of the other 5 credit cards was later confirmed to be a counterfeit card, and the remaining 4 were confirmed to be forged credit cards.

6. The defendant was arrested for using and possessing forged credit cards and was brought back to the Police station. Under caution and in the presence of an interpreter, the defendant alleged that he found an envelope containing the 7 credit cards inside a toilet in the Olympian City shopping mall at around 4pm that day and he had decided to use the credit cards out of greed.

Previous convictions

7. The defendant is of previously clear record.

Mitigation

8. The defendant is 38 years old and a Malaysian national. He is the sole breadwinner of his family in Malaysia which consists of his wife, his mother and his 2 sons aged 3 and 5 months. The defendant’s mother suffered a traffic accident and had to have one of her legs amputated. The defendant’s wife is a Thai national and has to renew her visa by returning to Thailand every month. The defendant used to work as a metal ware salesperson.

9. Mr. Lee for the defendant submitted that $16,400 is not a large sum and that there is no evidence that he was a member of a large syndicate. Charge 1 and 2 involved the same victim and took place on the same day in the same transaction, therefore the sentences for them should run concurrently. The defendant admits that he intended to use any one of the 7 cards in his possession to obtains good by deception, but after he left the shop, he no longer intended to use any of the remaining 6 cards.

10. 2 letters of mitigation were submitted, one from the defendant and one from his mother.

11. Mr. Lee sought to rely on the case of HKSAR v Cheung Ka Wo Johnny, CACC 136/2001, and ask the court not to adopt a starting point higher than that of 3 years’ imprisonment. It was pointed out to Mr. Lee the later case of HKSAR v Tu I Lang, CACC 464/2006, is a more recent case that supported his submission and Mr. Lee did not seek to address the court further on the point.

12. Upon inquiry from the court, the defendant maintained that he had obtained the credit cards in the manner as mentioned in paragraph 6 of the summary of facts.

Sentence

13. The maximum sentence for both s.73 and s.75(1) is that of 14 years’ imprisonment.

14. According to R v Chan Sui To and Another [1996] 2 HKCLR 128, CACC 115/1996, “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 circumstances.[1]”

15. In the case of HKSAR v Tu I Lang (supra), the Taiwanese appellant came to Hong Kong the day before he used a forged credit card to try to buy a mobile phone in a shop here. After his arrest and upon search, two forged credit cards were found on him and he was charged with possession of false instruments as well.

16. Having considered various cases including Chan Sui To, the Court of Appeal found that, “where the facts of the offence point to a small unsophisticated operation, involving only one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of three years’ imprisonment or less would be appropriate.[2]”

17. Although the appellant had only arrived in Hong Kong one day before committing the offences, the Court of Appeal was of the view that it could not be said that there was an international dimension[3].

18. In our present case, the total number of credit cards involved were 7 cards, which tend to suggest a small and unsophisticated operation. The defendant acted alone, there is no evidence to link him to a syndicate. Although one would be skeptical of how the defendant was able to find 7 credit cards in a name very similar to his in an envelope in a shopping mall in Hong Kong, there is no evidence to prove that he had brought the credit cards into Hong Kong, and as such this case cannot be said to have an international dimension.

19. Another suspicious circumstance in our case is the defendant’s entry into Hong Kong via Lowu control point at 11:02am on 27^th December 2012, just hours before his finding of the credit cards in a toilet at Olympian City and the subsequent commission of the offences. But then again, following the finding of the Court of Appeal in Tu I Lang, despite this highly suspicious activity, it cannot be regarded as adding an international dimension to the commission of the offences.

20. Be that as it may, I find that it is an irresistible inference that the defendant had entered Hong Kong on this particular occasion in order to commit the offences and I find that as an aggravating factor.

21. Nevertheless, bearing in mind the sentences in Chan Sui To and more relevantly Tu I Lang, I find that for each of the 3 charges, an appropriate starting point is that of 3 years’ imprisonment. The defendant is therefore sentenced to 2 years’ imprisonment on each of the 3 charges.

Totality

22. Bearing in mind the fact that the defendant had used the first and second credit cards in the same transaction, but that he was in possession of 5 more forged or counterfeit credit cards, and that he had entered Hong Kong specifically on this occasion to commit the present offences, I find that an appropriate overall starting point for all 3 charges viewed together would have been 3 years and 3 months’ imprisonment, which would have resulted in a final discounted sentence of 2 years and 2 months’ imprisonment.

23. I will therefore order that the sentences in charge 1 and 2 be served concurrently, but 2 months of charge 3 be served consecutively. The defendant is therefore sentenced for the 3 charges a total of 2 years and 2 months’ imprisonment.

[1] at paragraph 30 of the judgment

[2] at paragraph 10 of the judgment

[3] at paragraph 11 of the judgment