HKSAR v. ONG BAN LEONG

DCCC670/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 670 OF 2011

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Reasons for Sentence

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1.  The defendant, holder of a Malaysian passport, has pleaded guilty to one charge of ‘Using a false instrument’, laid against him under section 73 of the Crimes Ordinance, and one charge of ‘Possessing false instruments’, contrary to section 75(1) of the same ordinance. The facts of the case, to which the defendant agrees, are as follows.

2.  The defendant was recruited by a friend ‘Ah Wai’ to travel from Malaysia to Hong Kong and, with the use of five credit cards, to make purchases.  The defendant was to bring the goods he bought in Hong Kong back to Malaysia, and to have them handed over to Ah Wai for a reward of $5,000 to $10,000 Malaysian currency.

3.  He was provided with return-tickets, and he arrived in Hong Kong on 11 May 2011 with permission to stay for 90 days.

4.  On 13 May 2011, he visited a SK-II counter at SOGO Department Store, Tsim Sha Tsui, and used one of the five cards to purchase various SK-II products, worth a total of $5,520 (Charge 1).  The saleslady who served the defendant noticed some unusual features on the word ‘BANK’ on the face of the card, and found the defendant nervous.  She suspected the card to be a forged card, and caused a check to be conducted on it.  Information received from the Card Centre showed that the card was invalid.  A report was then made to the police.

5.  A police officer arrived at the Department Store for investigation.  He conducted a search on the defendant.  In the defendant’s wallet were found four other credit cards (Charge 2).  The officer then arrested the defendant.

6.  A forensic scientist examined the five cards seized in this case and confirmed that they were forged credit cards.

7.  By pleading guilty to the two charges, the defendant admits he believed that the cards were false instruments, and that he had the intention to use them to induce others to accept them as genuine and thereby to act to their prejudice.

8.  The court finds the defendant guilty as charged.

9.  In mitigation, the defence puts forward the following matters for the court’s consideration.  The defendant, who is 30 years old, has had a clear record in Malaysia and in Hong Kong prior to his current conviction.  He pleads guilty to the charges.  In Malaysia he made poor income and was the sole breadwinner supporting his parents and sister.  He owed somebody a debt of some $10,000 Malaysian currency.

10.  The defence relies on the case of HKSAR v Tu I Lang, CACC464/2006, in which a Taiwanese visitor used a false credit card to purchase a mobile phone the day after his arrival in Hong Kong, and upon his arrest, was found to have two other false credit cards in his possession.  A starting point of 4 years was reduced on appeal to one of three years.  The Court of Appeal said in paragraph 11:

“While some suspicion must attach to the arrival of the applicant in Hong Kong only the day before these offences were committed the facts of the present case, as accepted by the judge, reveal only a small scale operation with no international dimensions and no other aggravating factors.”

Discussion

11.  The offences of which the defendant stands convicted are serious.  Deterrent sentences are called for, as these offences are ‘a running scourge.’ (see HKSAR v Leung Pui Shan, CACC317/2007). 

12.  In HKSAR v Cheung Ka Wo, CACC136/2001, the Court of Appeal said,

“…the only previous case in which guidelines for sentence have been set out was R v Chan Sui To [1996] HKCLR 128…it was stated in that appeal that:

‘The sum of money involved is of course only one of the factors to be taken into account. It is not even the most significant factor.’

…in Hung Ping Wah, the total sum involved related to goods valued at $7,000. The Appellant pleaded guilty to two charges of using a false instrument and a third charge of possession of forged instruments. There was, as in the present case, no suggestion of an international dimension and no evidence of a syndicated operation. An overall starting point of four years for the two charges of using a false instrument was regarded by this court as having been ‘on the high side’, but it was said to have been ‘not manifestly excessive’. There was, however, the further factor in that case, namely, that following the appellant’s arrest, he was found … to have had ten more false credit cards in his possession, reflected in the third charge, which no doubt caused the judge in the present case to adopt the lower starting point of three years’ imprisonment.

9. A further example which reveals this court’s approach to sentence for offences related to false credit cards is to be found in HKSAR v Watt Siu Hung, CAC93/2001 (unreported). In that case, the value of the goods obtained on the two forged credit cards was slightly in excess of $3,000. The judge took a starting point of three years for these offences which the court again said was on the high side but was not manifestly excessive. The court also commented that:

‘There was every reason to believe that but for his arrest he would have continued to use the credit cards.’

10. The sentiment in relation to the potential losses involved in offences of this kind was specifically addressed in HKAR v Ng Swee Thiam & ors [2000] 1 HKLRD 772…the court commented (at p.778) that the amount proved to have been lost by the fraudulent use of credit cards:

‘pale(s) into insignificance when consideration is given to the potential for losses in the future.’

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‘It is this potential for losses which is the most important consideration.’”

13.  Leaving aside the consideration of international element for the time being, the court notes that not only did the defendant use a false credit card to purchase the SK-II products, he was also found to have in his possession four other false credit cards.  The facts of this case are more akin to those of Hung Ping Wah’s case, in which a starting point of four years was approved on appeal, although the number of actual purchases made with the use of false cards and of other false cards seized in Hung Ping Wah’s case were higher than the present case.

14.  There is a clear international dimension in the case before the court, in that the defendant brought the five cards into Hong Kong for use, and was to return to Malaysia with the cards and the fraudulently obtained goods.  The case of Tu I Lang is clearly distinguishable.  Hong Kong is famous for her tourists industry, and welcomes visitors from all over the world.  The court has a duty to protect Hong Kong from criminals who come here in the guise of tourists but with a premeditated intention to commit crimes.

15.  The court accepts that this is a small scale operation but that description of the case should not stand in the way of the court’s consideration of the factual matrix of each individual case to arrive at a just sentence appropriate to the facts.  In the court’s view, without the international consideration, a starting point of three and a half years would be appropriate for the two charges combined.  An extra 6 months should be imposed to reflect the international element in the two offences.  The overall starting point should be one of four years’ imprisonment.

16.  Apart from the defendant’s clear record and guilty pleas, none of the other suggested mitigating circumstances carry much weight.  Financial hardship is never a strong mitigation.  Nothing in the defendant’s personal and family circumstances would warrant any further discount.

17.  The court would adopt a starting point of 18 months’ imprisonment for Charge 1, and, in view of the defendant’s clear record and guilty pleas, reduce it by one-third to one of 12 months’ imprisonment.  A starting point of three years would be appropriate for Charge 2, which is likewise reduced by one-third to one of two years’ imprisonment. 

Conclusion

18.  Having considered the totality principle, the court orders that eight months of the sentence for Charge 1 to run consecutively to the two years’ imprisonment for Charge 2, resulting in the final sentence of two years and eight months’ imprisonment.