HKSAR v. TAN WEI LOONG

DCCC1206/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1206 OF 2010

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Reasons for Sentence

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1.  The defendant pleaded guilty to the charges as follows: (1) Obtaining property by deception under section 17(1) of the Theft Ordinance, Cap. 210; (2) Using a false instrument under section 73 of the Crimes Ordinance, Cap. 200; and, (3) Possessing a false instrument under section 75(1) of the Crimes Ordinance, Cap. 200.

The Facts

2.  The facts of the case are summarized as follows. 

Charge 1

3.  At about 7.30 pm on 4 September 2010, the defendant offered to buy two wallets with a total value of HK$4,023 at Extravaganza Limited situated at Shop 1011, Miramar Shopping Centre, 1 Kimberley Road at Tsim Sha Tsui.  The defendant presented a MasterCard numbered 5490 9601 9090 4319 in the name of Kam Man Sing (hereinafter called “Card 1”) for payment.  The transaction was successful and the defendant signed on the receipt.  He then left the shop with Card 1 and the wallets.

Charges 2 and 3

4.  Later, at about 5 pm on 5 September 2010, the defendant visited the shop again, he offered to buy two wallets valued at HK$8,730 in total.  This time he presented a Citibank VISA Card numbered 4277 4222 1019 0231 in the name of Lim Chin Huat (hereinafter called “Card 2”) for payment.  Nevertheless, the transaction was unsuccessful as the name printed on Card 2 was different from Card 1. 

5.  PW2, the sales representative for the shop, felt suspicious, she therefore called the card centre to make an enquiry.  When Card 2 was still in PW2’s custody, the defendant suddenly ran away, but he was finally intercepted at 65 Kimberley Road.

6.  The police soon arrived and arrested the defendant.  Upon search, a Bank of America MasterCard numbered 5490 9600 0007 7652 in the name of Kam Man Sing (hereinafter called “Card 3”) was found in the defendant’s possession.

7.  Under caution, he admitted that:

(1) The card he had used on 4 September to purchase the two wallets was forged;

(2) He had disposed of the said card and the said wallets on the same day;

(3) He made purchases using a forged credit card on 5 September 2010;

(4) Card 2 was forged but he did not use it to buy anything;

(5) Card 3 was forged and he kept it for future purchases; and

(6) He committed the offences because he was indebted and he needed the money.

8.  Card 2 and Card 3 were also found to be forged credit cards. 

9.  The defendant was a Malaysian visitor who entered Hong Kong on 3 September and departed on 4 September 2010.  He then entered Hong Kong again on 5 September 2010. 

The Defendant’s Background and Mitigation

10.  The defendant is 28 years old.  His father left the family when he was 12.  Since then his mother had brought him up single-handedly.  He is the eldest child in the family with two other siblings.  After he received his Form 5 education, he worked as a stage work technician in 2000.  Unfortunately, he had been unemployed since 2008.  He claimed that he had to borrow money from the loan sharks to support his family and himself.  Due to financial predicament, he committed the present offences.

11.  The defendant’s mother through his younger brother has written to the court and asked for leniency.  They spoke good about the defendant.  The defendant’s uncle has very kindly made full restitution on behalf of the defendant in the sum of HK$4,023 being the actual loss incurred as a result of the offence in Charge 1.

12.  The Court of Appeal in R v Chan Sui To & Another, CACC115/1996, said that:

“Allowing for the different facts and the varying degree of culpability, it is impossible to formulate a set of principles of sentencing... It would, however, be helpful to the Courts if they were guided by some criterion.”

13.  The Court of Appeal further held that “in ascertaining the sentence for credit card frauds, a sentencing judge will need to consider various factors including:

(a) the size of the operation, for example, whether it involved large sums of money, whether it concerned a large number of persons or forged credit cards;

(b) the planning that had gone into perpetrating the fraud, whether it was elaborate or simple, whether technical skills were used, and to what extent;

(c) whether there was an international dimension;

(d) whether the accused played a major role, for example, running a syndicate, engaging in actual manufacture, or organizing the use of forged cards, or whether he was a mere “cog in the wheel” as a courier or as a custodian or keeper; and

(e) whether there was a plea of guilty.

These factors are, however, not intended to be exhaustive.”

14.  The Court of Appeal had in many of the cases involving fraudulent use of credit cards emphasized that:

“The amount proved to have been lost by the fraudulent use of credit cards was not an important factor to be taken into account in sentencing for this kind of offences. It was the potential for losses which was the most important consideration”: see HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517 and Chan Sui To (above).

15.  Hence, severe sentences are called for as a deterrent to others who may be tempted to beat the integrity of a credit card system by fraudulent methods.

16.  In HKSAR v Tu I Lang, CACC464/2006, the Court of Appeal expressed and held that:

“8. ...It is equally true that in a number of other cases involving the simple possession or use of a small number of credit cards, this court has approved starting points of sentences of 3 years’ imprisonment where the operation involved can be fairly described as small scale.

9. In HKSAR v Lau Pui Hang (unreported), CACC393/2003, this court differently constituted concluded that in circumstances such as those before it where only two credit cards were involved and the operation could be described as relatively small scale falling below ‘the medium sized operation’ described in Chan Sui To, a starting point of 3 years’ imprisonment was appropriate: see also HKSAR v Watt Siu Hung, CACC93/2001, where the offences concerned the use of two forged credit cards and the court accepted it was a ‘relatively minor credit card fraud case’, that case being approved in Cheung Ka Wo Johnny. Small scale credit card offences cannot be subjected to strict guidelines. That is because the facts of such offences can vary significantly in a number of ways, the number of cards possessed or used being perhaps the most obvious factor.

10. 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 large operation, then a starting point of 3 years’ imprisonment or less will be appropriate.”

17.  The defendant was found in possession of 3 forged credit cards.  He had made use of two of these forged cards on different dates to purchase goods worth about HK$12,800.  The defendant was a visitor from Malaysia entering Hong Kong on 3 September 2010.  He departed Hong Kong on 4 September after the offence in Charge 1 had been committed.  He then returned to Hong Kong the next day on 5 September.  Having committed Charge 2 on that day, he was then arrested almost immediately. 

18.  Although the circumstances of the defendant’s visits in Hong Kong were suspicious and someone might be assisting him in the disposal of the stolen goods, there was no evidence to suggest that other persons were involved in the deception activities.  Undeniably, the defendant took an active role in this case which could describe as a relatively unsophisticated and small sized operation involving less than $12,800 without any international dimension. 

Sentences

19.  Having considered all the circumstances of the case, including the background of the defendant and of the case, mitigation advanced by his solicitor, his plea, his guilty plea the relevant authorities and the full restitution made by the defendant, this court considers that the appropriate starting point of sentence for each offence is 3 years’ imprisonment. 

20.  Such sentences would be reduced for his guilty plea to 2 years’ imprisonment.  This court is prepared to reduce the sentence for another 3 months for each charge to reflect his previous good character, co-operative attitude in the investigation and the full restitution made.

21.  The overall criminality and culpability of the defendant and the totality principle have also been duly considered.  Although the offences were committed on two consecutive days, with different credit cards used, this court is prepared to treat the fraudulent activities as one single transaction so as to impose concurrent sentences on the charges.  As such, it is ordered that the defendant has to serve 21 months’ imprisonment on each charge.  They are to run concurrently with each other.