HKSAR v. TEH YIN WEI

DCCC 363/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 363 OF 2013

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REASONS FOR SENTENCE

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Overview

1.  The defendant pleaded guilty to 4 counts of “Using a false instrument”, contrary to section 73 of the Crimes Ordinance, Cap 200 (Charge 1 to 4) and 1 count of “Possessing false instruments”, contrary to section 75(1) of the Crimes Ordinance, Cap 200 (Charge 5).

2.  The false instruments involved in this case were forged credit cards.

The facts

Charge 4

3.  The facts to which the defendant had admitted reveal that at about 4:15 pm on 26 December 2012, the defendant attempted to use a forged credit card to purchase a handbag and a wallet with a total value of HK$16,600 at “Louis Vuitton” store located in Peninsula Hotel Shopping Arcade Tsim Sha Tsui, Kowloon Hong Kong.  Upon feeling suspicion about the authenticity of the card presented, the store staff made a report to the police and informed the security guard of the hotel.  Prior to the arrival of the police, the defendant left the store with the forged credit card.  He was however followed by the security guard and was eventually intercepted by the police outside the hotel.

Charge 5

4.  Upon search, the aforesaid forged credit card together with 7 other forged credit cards were found on the defendant. Also, 3 sales receipts were seized from his rear left trousers’ pocket.

5.  The defendant was arrested for an offence of “Using a false instrument”.  Under caution, he admitted that he had attempted to use one of the forged credit cards to make purchase at the store but failed. Upon enquiry, he further admitted that the 7 cards found on him were all forged and they were given to him in Malaysia for making purchases.

Charges 1 to 3

6.  Upon further investigations of the aforesaid 3 sales receipts, it was revealed that on 3 occasions in the afternoon on 26 December 2012, the defendant had used 2 of the forged credit cards seized to obtain a vest jacket valued at HK$1,750 (Charge 1), a handbag valued at HK$12,400 and a wallet valued at HK$5,990 (Charge 2) and 2 boxes of perfume valued at HK$2,570 and 2 pieces of lipstick valued at HK$520 (Charge 3) at “DFS” stores in Tsim Sha Tsui, Kowloon Hong Kong.  All items fraudulently obtained were recovered from him at the time of arrest.

Cautioned statement

7.  In a subsequent video-recorded interview, the defendant under caution admitted that he entered into Hong Kong from Malaysia on 22 December 2012 as a visitor.  His partner of a forged credit card syndicate in Malaysia had arranged the air-tickets and accommodation for him. He was brought to make purchase by someone from the Malaysian syndicate.  He was promised a reward of HK$800 per HK$10,000 worth of goods purchased.

Mitigation

8.  The defendant is now 28 years of age, married and has a clear record.  He came from Malaysia where all his family members reside.  He was educated up to Form 3 in Malaysia and worked as a waiter in a night club earning about HK$9,000 each month.

9.  It was submitted that the defendant committed the present offences because of financial difficulties.  I was told that he was sacked by his employer last year.  Worse still, he was chased by loan shark for the repayment of a debt in the sum of about 7,000 in Malaysian currency.  The debt was in fact incurred by his best friend for whom he acted as a guarantor.

10.  I have also carefully considered the contents of two letters written by the defendant and his retired father.

Sentence

11.  Offences involving credit card fraud are very serious which must attract deterrent sentences.  The gravamen of credit card offences lies in the fact that it would upset the integrity of the credit card system which forms an integral part of the modern commercial world.  It is of paramount importance to maintain the confidence and trust of the people using such system for transactions.

12.  In R v Chan Sui-to [1996] 2 HKCLR 128, the Court of Appeal has set out the relevant factors, though not exhaustive, for sentencing credit card offences.  They are the size of the operation; the planning that had gone into perpetrating the fraud; whether the accused played a major role; whether an international element involved and whether a plea of guilty.

13.  In the present case, there were 8 forged credit cards involved.  Upon his own confession, the defendant was linked to a syndicate in Malaysia which had made arrangements including air-tickets and accommodation for facilitating the commission of the offences.  I therefore find that the operation was one of well-organized and sophisticated.  Also an international element was no doubt present.

14.  In HKSAR v Hoong Pang Chong CACC 344/ 2011[1], the applicant, a Malaysian national, was convicted upon his own plea of two offences involving 3 forged credit cards.  Having reviewed some of the previous authorities, the Court of Appeal recognized that the usual starting point for a small scale operation, which involved 2-4 forged credit cards and the value of commodities obtained was less than HK$15,000 and in the absence of any international element, would not exceed 3 years’ imprisonment.  Having accepted the presence of an international element in that case, the Court of Appeal held that a starting point of 3 years and 6 months for each charge was appropriate.

15.  Having considered the scale of operation, the value of goods involved, the presence of an international element and all the circumstances, I adopt a starting point of 3 years and 6 months for each charge.  To reflect his guilty pleas, sentences for each charge are reduced by one-third to 28 months.  Having considered all the mitigation advanced on behalf of the defendant, I see no other mitigating factors that warrant further discount in the respective sentences.

16.  Taking totality principle into account, I accept that all charges were part and parcel of the same operation and all forged credit cards were brought into Hong Kong at the same time.  Thus I order that all the sentences are to be run concurrently.

17.  In the result, the defendant is sentenced to 28 months’ imprisonment.