HKSAR v. MAK YIN WAH

DCCC1141/1993

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1141 OF 1993

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Reasons for Sentence

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1.  The Defendant pleaded guilty before me to the following 4 charges :

1^st charge : conspiracy to make false instruments, contrary to common law and section 71 of the Crimes Ordinance, Cap. 200;

3^rd charge : possessing a false instrument, contrary to section 75(1) of the Crimes Ordinance, Cap. 200;

5^th charge : possessing identity cards which relate to other persons, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177; and

6^th charge : using an identity card which relates to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177.

He pleaded not guilty to charges (2), (4) and (7) which again relate to offences concerning the possession or the use of false instruments and others’ identity cards. The prosecution asked for these charges to be left on the court file and not to be proceeded with without the leave of the court and it was so ordered.

2. These are forged credit card offences which happened between 1992 and 1993. The Defendant was arrested in April 1993 and these charges were brought in that same year. However, the Defendant jumped bail on 27 October 1994 and the case was therefore held in abeyance until now as the Defendant surrendered himself to the police on 19 July last year.

3. The Summary of Facts, which the Defendant admitted, revealed that between August 1992 and April 1993, he and another person named “Peter” conspired together to make forged credit cards. The method employed was that the Defendant would buy stolen identity cards from his contact persons in Shenzhen and would sell those cards to Peter so that the personal particulars could be used by Peter for making false credit cards. The Defendant told the police that he would also obtain credit card information from his contacts in Shenzhen and would then verify the accounts’ validity by making phone calls to the card centre, posing himself as a hotel staff. When the account was verified as valid, he would then supply the information to Peter so that Peter could use the information to make false credit cards. The false credit cards would then be for sale to others for use.

4. During the searches conducted in April 1993 in the Defendant’s home premises and in his private vehicle, various items which were used in connection with the making of forged credit cards were found. These included a credit card authorization terminal which could be used for checking the numbers encoded in the magnetic strips of cards, a MTR ticket, the magnetic strip of which was encoded with credit card account details, some hotel room and telephone cards which were encoded with credit card account information, and some documents containing credit card account information.

5. The above forms the subject matter in respect of the 1^st charge.

6. During the said searches, the police also seized a forged credit card in the name of “Leung Hung Fai”, which is the subject matter of the 3^rd charge, and the identity cards of “Poon Kai Tai” and “Kwan Tsui-ling”, which are the subject matters of the 5^th charge.

7.  Under caution, the Defendant also admitted that he had bought Fong Man-fai’s identity card from a person in Shenzhen and had used Fong’s identity card to register his mobile phone number. This is the subject matter of the 6^th charge.

8.  The Defendant is now aged 61. He is married and has one son. He was educated up to Primary 5 and has worked as a lorry driver and has had a business of his own. He was convicted of the offence of “abstraction of electricity” in 1989 for which he was fined. It is his only conviction and is now spent. In view of the relatively minor nature of the offence and that it was a conviction 20 years ago, I am prepared to ignore this conviction when sentencing him.

9.  In mitigation, Mr. Omar for the Defendant told the court that the Defendant is now suffering from high blood pressure and diabetes. Mr. Omar further pointed out that as these offences were committed in 1992 and 1993, the case of R v Chan Sui-to & Another [1996] 2 HKCLR 128 is not applicable as the judgment was given after the commission of these offences.  Mr. Omar provided the court with the cases of R v Lau Kwok Hung, Jacky & Another, CACC 99/1993 (unreported) and R v So Chung Kwong CACC 455/1993 (unreported). However, Mr. Omar submitted that the present case is not as serious as those two cases.

10.  Although the case of Chan Sui-to was decided after the offences in the present case had been committed, the Court, previously, has already emphasized the seriousness of credit card fraud. For instance, in R v Wong Fu Keung, CACC 5 of 1991 (unreported), the Court of Appeal noted that,

“It is a notorious fact that the illegal use of credit cards has become widespread. Those who are engaged in this type of activity can expect to be dealt with severely by the courts."

11.  Also, in R v Kwai Ying Ho, CACC 527 of 1992 (unreported), Litton JA said,

"Credit card frauds have in recent years been an insidious poison in the community. It affects a large number of citizens. It erodes the credit card system and damages Hong Kong's standing in the international community."

12.  In sentencing, I bear in mind that the integrity of the credit card system is highly important and must be protected and that severe sentences are called for as a deterrent. I also bear in mind the Defendant’s background, his pleas, and all the matters urged in mitigation on his behalf.

13.  In the present case, I note that the conspiracy in the 1^st charge concerned the making of false credit cards for sale to others for use. The Defendant played an important role as he was the one who supplied the account information and personal particulars to his co-conspirator for making the false credit cards. On the facts admitted by him, he was also the one who actively sought those particulars either by way of purchase from others or by getting access to items like hotel room cards and telephone cards which were encoded with credit card account information. The Defendant was also the one who phoned the card centre for verification of the account information.

14.  Given the facts of this case, the scale of the operation, and the role played by the Defendant, I consider a starting point of 4 years to be appropriate for charge (1). The Defendant pleaded guilty and he will be given a one-third reduction for his plea. Other than that, I do not see any other mitigating factors which warrant a further reduction in sentence. I should also say that although the Defendant has jumped bail, I do not propose to increase the sentence because of that as he is now before the court after he has surrendered himself to the police. Therefore, the Defendant is to serve a term of 32 months for charge (1).

15.  In respect of the 3^rd charge, as only one false credit card was involved, I consider a starting point of 18 months to be appropriate. Insofar as charges (5) and (6) are concerned, I consider a starting point of 12 months to be appropriate. Again, the Defendant will be given a one-third reduction for his pleas and the sentences will be one of 12 months for charge (3) and one of 8 months each for charges (5) and (6). 

16.  Having considered the totality principle, I order that all the sentences are to be served concurrently. The Defendant is therefore to serve a total term of 32 months’ imprisonment.