HKSAR v. YANG YI AND ANOTHER

DCCC 162/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 162 OF 2014

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REASONS FOR SENTENCE

D1 and D2 are jointly charged with an offence of "Conspiracy to use false instruments" (Charge 1) and an offence of "Possessing false instruments" (Charge 2). They pleaded guilty to Charge 1. The prosecution applied to leave Charge 2 in the court file; not to be proceeded against them without leave of court. I granted the application.

Summary of Facts

2.  D1 and D2 entered Hong Kong on 22 September 2013 as members of a tour group from the mainland.

3.  About 4:00 pm on 23 September, 2 males from a mainland tour group used a Capital One MasterCard (No.5183-7708-6994-3080) in the name of YANG YI ("Card 1") to purchase a camera ("Exhibit 1", valued at $13,125) at a shop located at the Emax Kowloon Bay International Trade & Exhibition Centre.

4.  About 4:30 pm, 2 males from a mainland tour group used a Capital One VISA card (No.4376-4851-0422-8467) in the name of YANG YI ("Card 2") to purchase a watch ("Exhibit 2", valued at $12,420) at the Duty Free Shop located at Tsim Sha Tsui.  Thereafter, they used a Capital One MasterCard (No.5316-9300-0256-7465) in the name of YANG YI ("Card 3") to purchase another watch ("Exhibit 3", valued at $11,224) at the same shop.

5.  About 4:45 pm, 2 males used an HSBC VISA card (No.4096-7041-5077-6478) in the name of YANG YI ("Card 4") to purchase a ring ("Exhibit 4", valued at $31,100) at the Duty Free Shop mentioned above.

6.  Later on the same day, staff members of the Duty Free Shop confirmed with the card centre that the genuine holders of Cards 2 and 3 were not in Hong Kong at the time of the relevant transactions.  The Police was alerted.  The guide of the mainland tour was located.  She confirmed that she saw D1 and D2 purchasing 2 watches at the Duty Free Shop.  She also disclosed that D1 and D2 were staying in Room 905, L'hotel Island South (the "Hotel Room") in Aberdeen.

7.  About 6:30 am on 24 September, police officers entered the Hotel Room.  D1 and D2 were found inside.  The following items were also found in the Hotel Room :-

(i) 16 VISA cards in the name of YANG YI, including Cards 2 and 4;

(ii) 12 MasterCards in the name of YANG YI, including Cards 1 and 3;

(iii) 6 MasterCards in the name of WANG JIAN;

(iv) 4 VISA cards in the name of WANG JIAN;

(v) 1 MasterCard in the name of LI YI; and

(vi) 1 VISA card in the name of WANG YI.

Exhibits 1 to 4 were recovered in the Hotel Room as well.

8.  In their respective video recorded interviews, D1 and D2 each admitted that they came to Hong Kong from Chengdu to shop with the 40 credit cards found in the Hotel Room.  D1 claimed that he purchased the credit cards from someone named CHAN on-line.  He later received them in a parcel at home in Sichuan.  D1 did not pay CHAN, but CHAN wanted D1 and D2 to purchase goods in Hong Kong, resell them in the mainland and share the proceeds amongst the 3 of them.  D1 admitted that that he purchased Exhibit 1 using one of the credit cards.  D1 and D2 also admitted that they purchased Exhibits 2 to 4 using Cards 2 to 4.

9.  An expert from the Government Laboratory confirmed that the 40 credit cards found in the Hotel Room are forged.

Mitigation

D1

10.  He is 30 and has a clear record.  Defence lawyer Mr. HUI informed me that D1 has a master's degree in International Logistics; he used to be an on-line salesman selling headphones.  He became unemployed shortly before the offence.  Mr. HUI submitted that D1 was cooperative with the Police and has made full and frank confessions.  Documents submitted  by Mr. HUI indicate that D1 was a victim in the 2008 Sichuan earthquake; he injured his left arm and now its movements are impaired.

D2

11.  He is 29 and has a clear record.  Defence counsel Mr. CHEUNG informed me that D2 has only completed his primary education.  He resides with his parents, wife and a son (aged 7).  D2 comes from a farming family.  In addition to farming, D2 also worked as a taxi driver.  Mr. CHEUNG submitted that D2 was in financial hardship; he has incurred a personal debt in the sum of about RMB6,000 due to his parents' illnesses.  A letter from D2's father was placed before me; its contents are duly noted.

Sentence

12.  I note that 28 out of the 40 credit cards (including Cards 1 to 4) are in D1's name; another 10 are in the name of WANG JIAN (whereas D2's name is WANG Shanjian; only 1 Chinese character short).  In order to obtain forged credit cards bearing the user's name, some advance planning must be required.  D1 and D2 may have their own "excuses" for committing the offence; 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.

13.  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.

14.  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.

15.  When determining the proper starting point for Charge 1, 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, such as making the forged credit cards bearing D1's name and a name similar to D2's;

(ii) a cross-border element is involved;

(iii) D1 and D2 were asked to shop with the forged credit cards in Hong Kong and then take the merchandise back to the mainland to resell;

(iv) D1 and D2 made admissions upon arrest and pleaded guilty to the charge; and

(v) Exhibits 1 to 4 were recovered.

16.  D1 and D2 successfully purchased goods in a total sum of about $68,000 using Cards 1 to 4.  They were also in possession of another 36 forged credit cards.  In my view, this case is by all means a medium-sized operation.  If they were not stopped by the Police in time, I believe they could have made further successful purchases, thereby causing more losses to various retail shops, a fact which I cannot overlook.

17.  On this basis, I consider 5 years' imprisonment to be the appropriate starting point[2].  A one-third discount is given for their guilty pleas, reducing the sentence to 40 months.  Apart from this, I see no other mitigating factors which warrant any further discount. Hence, D1 and D2 are each sentenced to 40 months' imprisonment.