HKSAR v. VEJAYNAIDU NOKARAJOO AND ANOTHER

 DCCC534/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 534 OF 2010

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Reasons for Sentence

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1.  Both defendants have pleaded guilty today to many charges.

2.  The 1st defendant has pleaded guilty to five charges of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap.210, Charges 1, 6, 8, 9, and 10; four charges of evasion of liability by deception, contrary to section 18(b) of the same ordinance, Charges 2, 3, 4, and 5; one charge of using a false instrument, Charge 11; and one charge possession of false instruments, Charge 12.

3.  The 2nd defendant pleaded guilty to three charges of obtaining property by deception, Charges 1, 7, and 9; four charges of evasion of liability by deception, Charges 2, 3, 4, and 5; one charge of possession of false instruments, Charge 13.

4.  I refer to the facts of this case. Both defendants are Malaysian Nationals. They came to Hong Kong for two days and one night. The 1st defendant was given at least 21 fake credit cards. The 2nd defendant was given at least 19 fake credit cards. They were told to shop using these cards, and sightsee in Hong Kong.

5.  The 1st defendant was told to shop with these credit cards, and 15 per cent of his total purchases would offset a debt of 10,000 Ringgit he owed his boss. It was his boss who gave him the credit cards.

6.  He has told the police the boss is a loan shark, and he became involved with him when he answered a job advert in a newspaper in Malaysia.

7.  The facts of the case are best described chronologically.

8.  Both defendants arrived in Hong Kong on 27 February 2010. They proceeded to the Regal Airport Hotel. One of the fake credit cards was used to check-in. This is Charge 4. The card was neither in the 1st nor the 2nd defendant’s name. The 2nd defendant presented the card to the front desk. This was at 8.40 pm.

9.  At 10.10 pm, both bought two Airport Express tickets valued at $200 with a card in the 1st defendant’s name. This is Charge 1.

10.  At 11.37 pm, both were obviously in a bar in Wanchai called Devil’s Advocate. Having consumed food and drink, a bill of HK$360 was paid for by a fake credit card in the 2nd defendant’s name. This is Charge 2.

11.  At 16 minutes past midnight, both were again in a bar in Wanchai, in the Coyote Bar and Grill. Having consumed food and drink, the bill of HK$292 was paid for with a fake credit card in the 2nd defendant’s name. This is Charge 3.

12.  The next day, 12.29 pm, both defendants were obviously checking out of the Regal Airport Hotel, and had incurred an extra $605.70 hotel expenses. The 2nd defendant attempted to settle this invoice. Four cards were handed over to the front desk, but each and every card was unsuccessful. The 1st defendant then stepped in after talking to the 2nd defendant, handed over a card in his name, and successfully settled this $600-odd bill. This is charge 5.

13.  10 minutes later, at 12.39 pm, the 1st defendant bought an Airport Express ticket from the Airport Station to Kowloon Station valued at $90, it was a same day return ticket, using a fake credit card. This is Charge 6.

14.  At 12.42, three minutes later, the 2nd defendant did the same thing with a card in his name. That is Charge 7.

15.  At 2.29 pm, the 1st and 2nd defendants entered Fortress, a shop in the airport. The 1st defendant asked for one i-phone, paid for it along with some accessories. The 1st defendant produced one after another, a total of four credit cards. All were unsuccessful. The fifth card in the 1st defendant’s name successfully purchased these items. All along the 2nd defendant accompanied the 1st defendant. That was Charge 8.

16.  At 2.56 pm, both entered Starbucks; food and drink were purchased to the value of HK$78, for which the 2nd defendant paid with a fake credit card. This is Charge 9.

17.  At 4.12 pm, the 1st defendant again, from a different airport outlet to Fortress, bought an i-phone, and paid with a fake credit card in his name. The 2nd defendant again accompanied the 1st defendant when he made this purchase. This is Charge 10.

18.  Charge 11, a few minutes later, 4.15 pm, the 1st defendant chose an OMEGA watch valued at $28,100 and presented a credit card in his name. The salesperson could not successfully process this card. The 1st defendant produced a second card, but before an attempt was made to charge this card the 1st defendant changed his mind, returned the watch and left the shop. The salesman was suspicious and alerted the police.

19.  The defendants were arrested when they returned to the shop not long after to pick up the 1st defendant’s boarding pass he had left behind. The defendants and their luggage were searched. The two i-phones recently purchased were found in the 2nd defendant’s suitcase.

20.  Seventeen additional fake credit cards were found on the 1st defendant. All but one of the cards were in his name. That is Charge 12, and upon search, 15 fake credit cards were found on the 2nd defendant, all 15 were in his name. This is Charge 13.

21.  Both defendants were arrested. Both then proceeded to give records of interviews. They fully cooperated with the police.

22.  The 1st defendant admitted that his boss in Malaysia had given him the 21 cards and the 2nd defendant 20 cards to proceed to fly to Hong Kong for two days and one night. He was told to use these cards to make purchases.

23.  He explained that his boss was a loan shark, and that he had borrowed 10,000 Ringgit from him. He was unable to repay this debt, and was in effect forced to agree to come to Hong Kong to shop with these fake credit cards. He would receive 15 per cent of the total purchases he made in Hong Kong to set off his loan.

24.  The 2nd defendant gave details in his record of interview that his boss was also the 1st defendant’s boss. He had been offered a well-paid job to sell sport cars. Not long after obtaining this job, he was given 19 credit cards in his name to go to Hong Kong to sightsee and shop. His boss had given them both air tickets.

25.  The 2nd defendant said that the cards were in his name but he had not signed the back of these cards. He was suspicious and asked his boss as to the origin of these cards. He was told they were genuine, and in his record of interview he said he did not know they were forged or fake credit cards. He admits in his record of interview that he accompanied the 1st defendant throughout all purchases made with these cards.

26.  During yesterday’s hearing for plea and mitigation, the 2nd defendant clarified and confirmed that when these cards were used he knew they were fake and he acted dishonestly.

27.  Mitigation at first was advanced on the basis that he was suspicious but did not know they were fake. He believed his boss when he was told that all cards were genuine.

28.  Subsequently after instructions were clarified, I was informed that he knew the cards were fake and he had a dishonest intent when the cards were used.

29.  I turn to the mitigation of both defendants. Clearly, the 1st and 2nd defendant were used by a man they called their boss in Malaysia. The 1st defendant was in effect at the mercy of his boss due to a debt of 10,000 Ringgit. He had no choice but to do as instructed.

30.  The 2nd defendant seems to have just done as he was told. I have no information as to what his reward was to be except that he wanted a job with this man; a job which I am sure was a bogus job.

31.  The 1st defendant is 28 years old and single. I am sure he is remorseful. His remorse is shown by his plea of guilty. I have seen now two letters of mitigation asking for leniency.

32.  The 2nd defendant is 25 years old, also single, but engaged to be married. He has a Diploma in Nursing and is studying a Degree in Nursing. I have been informed and shown doctors’ documents that his father is ill, and is receiving expensive medical treatment, in particular, weekly dialysis. The 2nd defendant holds down two jobs at the same time as pursuing his studies to help pay for his family and his father’s medical expenses.

33.  He answered an advert in the newspaper and met a Chinese male, who offered him a high paid job selling cars. It would seem that all his dreams had come true. He strikes me as being gullible. He also has sent two letters in mitigation expressing his remorse and asking for leniency.

34.  Best mitigation for both defendants has to be their pleas of guilty.

35.  These offences are very serious. The 2nd defendant’s solicitor has asked me in mitigation to take a starting point of 3 years’ imprisonment or less. I assume by that, that is a global starting point.

36.  It was put forward yesterday that in the facts of this case there is no international elements. He submits that a 3 year starting would be appropriate, and has produced some authorities to assist his submission. I will come back to those.

37.  For cases of this nature there are no guidelines as such. Each case will have facts peculiar to itself, and credit card fraud operations come in all sizes and dimensions. However, there is authority, and I refer to the authority of R v Chan Sui To and and Another [1996] 2 HKCLR 128, which reviews credit card frauds and sets out what are relevant factors to consider in sentencing..

38.  I will repeat and I will quote from that authority, five factors, and I quote from the then Chief Justice, Yang CJ:

“The first factor being the size of the operation, for example, whether it involves large sums of money, whether it involves a large number of persons, or forged credit cards.  (2)  Planning that has gone into perpetrating the fraud, whether it was elaborate or simple, whether technical skills were used, to what extent.  (3)  Whether there is an international dimension.  (4) Whether the accused played a major role, for example, running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he is a mere ‘cog in the wheel’ as a courier or a custodian or a keeper.  (5)  Whether there is a plea of guilty.  In considering whether large sums of money were involved, we would suggest that at the present cost of living amounts up to $50,000 may be considered relatively small; amounts from $50,000 to $150,000, medium, and amounts above that may be considered large.”

39.  I go on. At page 134 of that same authority Yang CJ says:

“Allowing for the different facts and the varying degrees of culpabililty, it is impossible to formulate a set of principles for sentencing from those decisions.  We think however it would be helpful to the courts if they were guided by some criterion.  We would suggest therefore that an accused who plays an active but not necessarily a key role in a medium sized operation involving between $50,000 and $150,000 with no elaborate planning and equipment and without an international dimension should receive a sentence of 5 to 6 years after trial.  Sentences may be adjusted upwards or downwards according to circumstances.

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.”

40.  “Credit card frauds have been described in the past as an insidious poison. It erodes the credit card system and damages Hong Kong’s standing in the international community”, and there I have quoted Litton JA in R v Kwai Ying Ho CACC527/1992.

41.  I have in this case applied the relevant factors set out in Chan Sui To to the defendants here. We have a two-man team that has come to Hong Kong from Malaysia, sent here by their boss.

42.  Their only purpose here is to commit credit card frauds. They were in and out in two days and one night. The purpose was to wreak havoc, use forged credit cards and then leave Hong Kong.

43.  There were over 40 fake credit cards between the defendants. There is, without a doubt, an international dimension to this case.

44.  The defendants’ roles are equal in my view, both were important to this operation. I accept they were not masterminds, but they were also not just couriers or custodians. They were asked to and did use the forged credit cards. Certainly there has been some planning involved. This is not a simple case of a one card one man credit card fraud.

45.  Despite their intentions, instructions, and the number of cards they possessed between them, they only bought two expensive items, that is two i-phones. They did try and buy an OMEGA watch but were unsuccessful. They did not have much to show for their trip to Hong Kong.

46.  I am not going to speculate, I do not need to speculate; it would not be relevant to sentence, but having heard their mitigation and background, I hazard a guess that they lacked the courage to use the cards for big expensive items. The OMEGA watch purchase was only attempted half an hour before they were due to take-off back to Malaysia.

47.  The 1st defendant explained why he agreed to come to Hong Kong. He was backed into a corner by a loan shark and a debt. He chose to commit these offences to try and get himself out of trouble.

48.  The 2nd defendant may be gullible or naïve, but was greedy in thinking that being involved with this man he met through a newspaper advert would lead to good financial opportunities.

49.  I accept that both are remorseful now. The 2nd defendant’s counsel, as I said earlier, has asked this court to consider a starting point of 3 years or less. Two authorities have been cited, HKSAR v Watt Siu Hung, CACC93/2001, and HKSAR v Tu I Lang, CACC464/2006.

50.  I do not intend to repeat the facts of those authorities, but I distinguish them to the facts here. I find there to be an international element and dimension in this case that is missing in those authorities, plus there are many cards in this case; many more than in those authorities. Those authorities can be described as dealing with minor credit card fraud cases.

51.  The facts here show that this is more than just a minor credit card operation. There are authorities where an international element will give rise to a much higher starting point than 3 years, and that is following the factors set out in Chan Siu To.

52.  As an example, I referred myself to an authority of HKSAR v Sun Chun Lei, CACC476/2002, and HKSAR v Bin Kei Chi and Another, CACC181/2005, where 5½ years and a 6 years’ starting point respectively was deemed appropriate for credit card frauds with an international dimension, and where many credit cards were involved.

53.  I also note that the defendants are not Hong Kong residents and foreigners in Hong Kong, but that is not a relevant factor or consideration where sentence is concerned. It will not attract a lower starting point, especially where the defendants came to Hong Kong to commit crime and it is not the situation of them committing a crime whilst they happened to be in Hong Kong.

54.  Both defendants have clear records in Hong Kong.

55.  The 2nd defendant’s sister has asked me to take a lower starting point to reflect the 2nd defendant’s clear record, but the defendants here are not Hong Kong residents, so to have a clear record here is no meaningful indication of his character and it is a matter of almost no consequence. The fact of a clear record will be built into my starting point.

56.  No additional discounts are now given for clear records. A higher starting point would of course be appropriate if the defendant had an appalling criminal record, or was a habitual criminal. That is not the situation here.

57.  I take into account many factors relevant to sentence: the pleas of guilty by both defendants, their obvious remorse, the facts of the case, the number of fake credit cards, the monetary loss due to the use of these fake cards, mitigation put forward, as well as the factors I have already highlighted above.

58.  I also take into account the totality principle. These offences were all committed within two days and one night.

59.  I believe both the defendants are equally culpable. It may seem that the 1st defendant is more culpable due to more charges being laid against him, but the 2nd defendant was with him when the 1st defendant signed each and every credit card slip. Both came here to act in concert and commit the same crimes together, of that I am sure. The 2nd defendant did sign and produce cards in Charges 3, 4, 7 and 9. In my view, both played equal roles and both will attract an equal sentence as well as a concurrent sentence.

60.  Defendants, please stand up. For Charges 1 to 5, both the 1st and 2nd defendant are jointly charged with Charges 1 to 5. I will take a starting point of 4 years’ imprisonment.

61.  For Charge 6, where the 1st defendant is concerned, I take a starting point of 4 years’ imprisonment.

62.  For Charge 7, which the 2nd defendant faces, I take a starting point of 4 years.

63.  For Charge 8, which only the 1st defendant faces, I take a starting point of 4 years and 6 months.

64.  The 9th charge both defendants face, I take a starting point of 4 years.

65.  For Charge 10, which the 1st defendant faces, I take a starting point of 4 years and 6 months.

66.  For Charge 11, the 1st defendant faces, I take a starting point of 4 years and 6 months.

67.  For Charge 12, of which the 1st defendant faces, I take a starting point of 4 years and 6 months.

68.  For Charge 13, which the 2nd defendant faces, I take a starting point of 4 years and 6 months.

69.  Both defendants are entitled to a discount of one-third for their pleas. Ultimately, the sentences will be as follows: after discount, Charge 1 to 5, which both defendants face, will be for each charge a sentence of 2 years and 8 months.

70.  Charge 6, which the 1st defendant faces, a sentence of 2 years and 8 months.

71.  Charge 7, 2nd defendant faces, 2 years and 8 months.

72.  Charge 8, which the 1st defendant faces, a 3 years’ sentence.

73.  Charge 9, 1st and 2nd defendants jointly face, a 2 years and 8 months’ sentence.

74.  Charge 10, the 1st defendant faces a 3 years’ sentence.

75.  Charge 11, which the 1st defendant faces, a 3 years’ sentence.

76.  Charge 12, the 1st defendant faces a 3 years’ sentence.

77.  Charge 13, the 2nd defendant faces a 3 years’ sentence.

78.  Charges 1 to 13, each charge the defendant faces will be ordered to be served concurrently. A 3 years’ sentence will be imposed on each defendant in total.