HKSAR v. FONG HON MAN, RAYMOND

DCCC 817/2019

[2020] HKDC 766

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 817 OF 2019

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of using a false instrument, contrary to section 73 of the Crimes Ordinance (charge 1) [1]; one charge of possessing false instruments, contrary to section 75 (1) of the Crimes Ordinance (charge 2) and one charge of failing to surrender to custody without reasonable cause, contrary to section 9L (1) and (3) of the Criminal Procedure Ordinance[2] (charge 3)[3].

2.  Charges 1 and 2 concern the use and possession of forged credit cards on 18 June 2003. Charge 3 concerns the defendant’s failure to attend court to answer the charges on 27 February 2004.

3.  Full particulars of the offences are set out in the summary of facts admitted by the defendant on 24 July 2020.

4.  In summary at around 8:15 p.m. on 18 June 2003 the defendant went to the Pacific Cigar shop in the lobby of the Mandarin Oriental Hotel.  After selecting cigars worth $3,800 the defendant asked to pay by credit card and produced a Manhattan credit card in his name. 

5.  Mr Wong, the salesperson serving the defendant, telephoned the credit card centre and was informed the credit card was false and that the police would be called.  Mr Wong immediately locked the door of the shop to prevent the defendant from leaving.  The defendant asked for a chance and requested Mr Wong to let him go.

6.  Approximately five minutes later the police arrived and arrested the defendant.  Upon body search of the defendant the police found two more forged credit cards which were also in the name of the defendant. 

7.  In a video recorded interview, the defendant claimed that two days earlier he was in a restaurant when a stranger approached him and offered to sell him false credit cards for $3,000 each and admitted he used one of the cards to purchase the cigars.   

8.  The defendant first appeared in court on 21 August 2003 and was granted bail[4].  The defendant failed to attend court on 27 February 2004 when a warrant of arrest was issued.  The defendant was rearrested when he surrendered to the police on 19 August 2019.

Mitigation

9.  I have carefully considered the oral and written submissions of Mr Wong on behalf of the defendant, including that the defendant, aged 47, lives with his wife in Shenzhen, has a clear record and has the promise of work after his release from prison[5].

10.  The defendant has written a mitigation letter in which he asks for a lenient sentence so that he may take care of his wife[6].

Sentence

11.  In passing sentence, I take into account the factors which a sentencing judge will need to consider in credit card frauds as set out by the Court of Appeal in R v Chan Sui To, including the size of the operation; the planning that had gone into perpetrating the fraud; whether there is an international dimension; and whether the accused played a major role[7]. The factors were not intended however to be exhaustive but provide valuable assistance to the court.  The courts have repeatedly stressed that deterrent sentences are to be imposed. 

12.  Where the facts of the offence point to a small unsophisticated operation, involving one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years or less would be appropriate[8].

13.  Higher sentences have been held appropriate for example where the defendant was obviously part of a wider organisation that had caused cards to be printed specifically for him[9].

14.  The defendant told the police that on 16 June 2003 a stranger approached him in a café and offered to sell him the false credit cards[10].  Asked whether this was how the defendant obtained the cards Mr Wong   replied yes.  Asked whether the defendant was given the cards at the same time Mr Wong again replied yes. 

15.  The three forged credit cards were in the name of the defendant.  When asked why the cards were in his name if they were given to him at the same time the stranger approached him Mr Wong, after taking instructions, replied that the defendant gave his information and two hours later the stranger returned with the cards. 

16.  I reject that a stranger approached the defendant in a café offering to sell him forged credit cards which were in the defendant’s name.   After taking instructions Mr Wong confirmed that the defendant did not wish to give evidence about how he obtained the forged credit cards. 

17.  Taking into account that the defendant used one card to obtain goods valued at $3,800 and that all three cards were in the name of the defendant indicating his connection to a wider organisation, I am satisfied a starting point of 3 years and 6 months’ imprisonment is appropriate on each of charges 1 and 2.

Timely plea of guilty

18.  The defendant failed to surrender to court on 27 February 2004 and only surrendered to the police on 19 August 2019, over fifteen years later. 

19.  On 4 September 2020 Mr Wong informed the court that the defendant had also failed to attend court on 27 November 2003.  Mr Wong explained that the defendant had been robbed whilst he was in Paris and sustained injuries which prevented him from flying back to Hong Kong to attend the hearing on 27 November 2003. 

20.  The defendant faxed copies of medical certificates and letters to the Duty Lawyer Services requesting an adjournment of his case on 27 November 2003.  Mr Wong submitted copies of the medical certificates and the letters the defendant faxed to the Duty Lawyer Services[11].

21.  Mr Chan informed the court that on 27 November 2003 the case was adjourned to 27 February 2004, the court requesting the police to check the medical condition of the defendant. 

22.  Mr Wong said that nobody informed the defendant of the new hearing date.  Mr Wong explained that the defendant returned to Hong Kong before the end of 2003 and having cooperated with the police after his return the defendant thought that the charge would be dropped.

23.  I queried whether the court could accept a plea of guilty to charge 3 where the defendant claimed that he was not told the date of his appearance in court.   I stood down the case for Mr Wong to take further instructions. 

24.  When the court resumed Mr Wong informed the court that after the defendant faxed the medical certificates and the letters to the Duty Lawyer Services in November 2003 he called the Duty Lawyer Services a couple of days later to confirm they had received the documents.  During that telephone conversation the defendant says he was told the next hearing date was 27 February 2004.

25.  Mr Wong explained that the defendant returned to France in early 2004 for a medical check-up and again faxed a medical certificate to the Duty Lawyer Services requesting an adjournment of the hearing on 27 February 2004[12]. 

26.  On this occasion the defendant did not however call the Duty Lawyer Services to confirm receipt of the documents.  When asked by the court whether there was any reason why the defendant did not contact the Duty Lawyer Services to confirm receipt of the documents and ask what happened on 27 February 2004, Mr Wong replied that the defendant simply forgot and that due to his misunderstanding that the case would be dropped the defendant thought he did not have to attend court.

27.  In his written mitigation Mr Wong explains that the reason for the defendant failing to surrender to court was because the defendant wrongly believed that the police would drop the charge against him because of his co-operation and that the defendant was able to leave Hong Kong without any problem[13].

28.  The police have been unable to retrieve any record relating to cooperation on the part of the defendant[14].

29.  Annexed to the written mitigation are copies of the defendant’s travel records during the period from 1 January 2018 to 17 August 2019.  When the case was first adjourned on 29 May 2020 I asked the prosecution to enquire why the defendant was able to travel in and out of Hong Kong if he was subject to an arrest warrant for failure to attend court on 27 February 2004.

30.  On 24 July 2020 Mr Chan explained in court the reason why the defendant was able to travel in and out of Hong Kong in 2018 and 2019.  At the request of the court the explanation was reduced into writing by way of letter from the Department of Justice dated 26 August 2020[15]. On 4 September 2020 Mr Wong confirmed in court that he had received a copy of the letter. 

31.  In summary the police having been told by the victim in December 2014 that he was no longer willing to be a witness and did not want to pursue the case, the OC Case informed the Criminal Records Bureau in January 2015 to delete the defendant from the watch-list.    

32.  The OC Case then requested the Department of Justice to apply to withdraw the case. The Department of Justice refused the request, however the OC Case did not put the defendant back on the watch-list and wanted-list. 

33.  On this information the defendant having been on the watch-list for over 10 years, 27 February 2004 to 9 January 2015, I clarified with Mr Wong the link in paragraph 16 of the written submission between the defendant believing the case had been dropped and the defendant being able to leave Hong Kong.  

34.  Mr Wong replied that the defence was only able to obtain the travel records for 2018 and 2019.  Mr Wong explained that after the hearing date 27 February 2004 the defendant returned to Hong Kong in 2004, stayed a couple of months and then went to Korea and Beijing after which he stayed in China for a couple of months.  The defendant would then regularly travel between Hong Kong and China, including renewing his “Hong Kong China Entry Permit” in 2008.   

35.  When asked by the court whether it can be checked if the defendant was actually put on the watch-list Mr Chan explained that according to the police after an arrest warrant was issued the police would follow standard procedure and inform the relevant department of the arrest warrant the same day.  About six months later the police would also confirm with the Immigration Department. 

36.  Asked if confirmation was obtained that the defendant was actually put on the watch-list Mr Chan replied that the police had confirmed that the defendant was put on the watch-list, only that no supporting documentation had been obtained to confirm this.  Asked why not Mr Chan said he had no reason to doubt the police records. 

37.  Prior to the hearing today Mr Chan by way of letter dated 16 September 2020 provided further information about the defendant being placed on the watch-list.  Mr Wong confirmed in court today that he had received a copy of the letter.

38.  In summary a written request was sent to the Immigration Department on 8 March 2004.  This was followed by regular memos from the Immigration Department requesting the police to review the need for the defendant to remain on the watch-list.  The police replied by way of memos that the defendant should be kept on the watch list with the first memo dated 26 April 2006 and the last memo dated 7 February 2014.  Copies of some of the memos have been submitted to court which clearly show the defendant was placed on the watch-list[16].

39.  Prior to the hearing today Mr Wong submitted by letter dated 14 August 2020 which was faxed to the court on 14 September 2020 a copy of the defendant’s expired Mainland Travel Permit which allows travel from Hong Kong to Mainland China and a copy of the defendant’s expired HKSAR passport.  The originals have been submitted to court today for inspection.

40.  Mr Wong is instructed that the defendant came to Hong Kong in 2008 when the permit was issued.  

41.  Apart from the passport showing that the defendant did travel to France in 2003 and 2004 at the time of the two court appearances[17], the  passport also shows that after the 27 February 2004, when the arrest warrant was issued and the defendant placed on the watch-list, the defendant travelled to Japan in 2004, Amsterdam in 2004, Korea in 2005 and 2006 and Thailand in 2011 and 2012.  There is also an incomplete chop on page 29 of the passport which appears to show that the defendant travelled to France in 2008.

42.  Mr Wong accepts that the passport only shows arrivals and departures in these countries and not where the defendant travelled from. 

43.  Mr Wong is instructed that the defendant travelled from Hong Kong.  This is inconsistent with the information supplied by Mr Chan about the defendant being placed on the watch-list.  The memos clearly show the defendant was placed on the watch-list.

44.  This is also inconsistent with the travel records submitted by Mr Wong.  On 4 September 2020 Mr Wong submitted the original travel records annexed to the written mitigation together with one additional certificate dated 17 June 2020[18].  The additional certificate states that no arrival and departure records could be located during the period 1 January 2010 to 31 December 2017.  

45.  On reading this certificate I asked Mr Wong what periods of travel records his solicitors had requested.  Mr Wong explained his solicitors first requested travel records for the period 1 January 2018 to 17 August 2019 which were supplied and annexed to the written submission. 

46.  After the court hearing on 29 May 2020 the solicitors requested further travel records for the period 1 January 2003 to 31 December 2006.  The Immigration Department having telephoned the solicitors informing them they can only supply travel records not exceeding ten years issued the certificate for the period 1 January 2010 to 31 December 2017.

47.  The records show that the defendant had not travelled for over eight years between 1 January 2010 and 23 March 2018 when he entered Hong Kong. 

48.  The only conclusion therefore is that when the defendant travelled to Japan in 2004, Amsterdam in 2004, Korea in 2005 and 2006 and Thailand in 2011 and 2012 he did not travel from Hong Kong.  Similarly, the defendant was not in Hong Kong when the Mainland Travel Permit was renewed. 

Surrender

49.  When asked by the court what made the defendant surrender after fifteen years Mr Wong replied that the defendant was talking with a friend when it just came to his mind the case may not have finished.  After taking instructions about what made the defendant change his mind after so many years that the case may not have been dropped Mr Wong said that the defendant’s friend had a relative who was a police officer and that they were talking with the police officer when the subject of absconding was discussed.  The police officer then reminded the defendant that he better check whether his case was actually dropped.

50.  Mr Wong confirmed that the defendant did not ask the police or the Duty Lawyer Services what happened on 27 February 2004 and was not told by the police that the case would be dropped or that he did not have to go to court. 

51.  As indicated in court I do not accept that the defendant believed the case would be dropped and that he did not have to go to court.  I reject that the defendant was travelling in and out of Hong Kong after an arrest warrant was issued on 27 February 2004.  After taking instructions Mr Wong confirmed that the defendant did not wish to give evidence that he thought the case would be dropped. 

Discount

52.  Mr Wong accepts that this was not a timely plea and submits that a discount of 25% would be appropriate[19].  In support of his submission Mr Wong refers the court to HKSAR v Kwan Po Keung where the appellant absconded for over 12 years[20]. The court held that in all the circumstances of that case, including that the appellant had surrendered to the police, a discount of 25% was appropriate.

53.  The usual range of discount afforded to a defendant who leaves the jurisdiction is about 20% to 25%[21]. 

54.  In HKSAR v Chow Tak-fuk Stock JA observed:[22]

“Whilst the courts must always encourage persons to surrender, so that some credit for that fact will normally be given, those who might be minded to flee should not be led to believe that if ultimately they return they will be in no worse position than had they not fled in the first place.”

55.  Taking into account that the defendant eventually surrendered I am satisfied the appropriate discount is one of 10 months’ imprisonment which is a discount of just less than 24% and which reduces the sentence on charges 1 and 2 to 2 years and 8 months’ imprisonment.

Failing to surrender

56.  The sentence for failing to surrender to court partly depends upon how long after failing to surrender a defendant is re-arrested and brought to court. Generally, the longer the period the longer the sentence.   

57.  I have already discussed in detail the events surrounding and subsequent to the defendant’s failure to surrender to court when considering the appropriate discount for the defendant’s late plea on charges 1 and 2.

58.  Taking into account that the defendant only surrendered to the police over fifteen years after failing to attend court, I am satisfied a starting point of 9 months’ imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty reduces the sentence to 6 months’ imprisonment.

Charitable donations

59.  Mr Wong submits to court proof that since December 2018 the defendant has made monthly donations of $150 to UNICEF.  In recognition of making these charitable donations, I further reduce the sentence on each charge by 1 month which reduces the sentence on charges 1 and 2 to 2 years and 7 months’ imprisonment and on charge 3 to 5 months’ imprisonment.  

Totality

60.  I am satisfied concurrent sentences are appropriate for the two credit card offences. 

61.  Failing to surrender to court is however a wholly distinct and separate offence from the offences involving forged credit cards.  In HKSAR v Ko Chun Hung the Court of Appeal, in rejecting the submission that the appellant had been punished twice for absconding, stated that by absconding the appellant had committed a fresh offence and had to be punished separately[23]. 

62.  A consecutive sentence is therefore appropriate subject to consideration of totality of sentence[24].

63.  I am satisfied a wholly consecutive sentence is appropriate making a total sentence of 3 years’ imprisonment, which I am satisfied properly reflects the defendant’s overall criminal culpability on the three charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[25].

Sentence

64.  The defendant is convicted and sentenced as follows:

Charge 1 – 2 years and 7 months’ imprisonment;

Charge 2 – 2 years and 7 months’ imprisonment concurrent to charge 1; and

Charge 3 – 5 months’ imprisonment consecutive to charges 1 & 2.

The total sentence to be served by the defendant is 3 years’ imprisonment.