HKSAR v. SIM YEE CHUAN AND ANOTHER

DCCC 307/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 307 OF 2013

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Reasons for Sentence

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1. Defendants, the charges to which you have pleaded guilty involved forged credit cards. The 1st charge against both defendants is conspiracy to use false instruments, contrary to section 73, 159A and C of the Crimes Ordinance. The 2^nd Charge against D2 only is the offence of possessing false instruments which are credit cards, contrary to section 75(1) of the Crimes Ordinance. 1^st Defendant you have pleaded guilty to charge 1 and D2 to charges 1 and 2.

2. In respect to both defendants, you are Malaysian citizens and both came to Hong Kong from China together on 12 November 2012.  You conspired to use 10 forged credit cards to make purchases in Hong Kong.  At all material times, the 2nd defendant was the person in possession of these 10 forged credit cards.

3. Once crossing the border into Hong Kong, D2 went on a shopping spree with these forged credit cards.  He went to five different shops in Hong Kong located in different parts of Hong Kong over a period of approximately three hours.  The first shopping spree was in Sheung Shui, then in Mongkok, and then in Wong Tai Sin. 

4. The items that D2 tried to purchase were watches, mobile phones, spectacles and iPads.  He was successful in making one purchase of a mobile phone which was valued at about $5,600.  All the other attempted purchases failed as a result of the cards not passing or being approved.  D2 had presented for purchase six forged credit cards, of which all failed. The total value of the goods that would have been purchased had these purchases been successful was about $28,000.

5. D1 was present nearby for the majority of the time whilst D2 was making these purchases though not inside the shops themselves.  During these purchases, the 1st and 2nd defendants were kept under police surveillance or observation.  They were followed throughout this period of time.  Eventually, they were intercepted and arrested by the police officers. 

6. The nine forged credit cards were found on the 2nd defendant as well as the successful purchase of the mobile phone.  The remaining credit card was left at one of the shops and was later seized by the police.  Upon arrest, for the use of forged credit cards, D2 said under caution he had only helped Ah Sem use the counterfeit cards and Ah Sem was the person who was having meals with him together at KFC.  The police then went to KFC and arrested the 1st defendant.  He remained silent under caution.

7. Found upon the defendants person were mobile phones.  Upon investigation of these mobile phones by the police, text messages were seen to be sent between the 1st and the 2nd defendants.  On these messages were seen instructions given by D1 to D2 on where to go and what to buy using those forged credit cards and also of D2’s confirmation with D1 on the card numbers of the 10 counterfeit credit cards.

8. Counsel for D1 and D2, Mr John Necholas and Mr Kwan Tong-lee, respectively for D1 and D2 have made full and thorough mitigation on their behalf.  I have taken into account all they have had to say.

9. For D1, he is 44 years of age, has completed high school education in Malaysia, has one previous conviction of obtaining property by deception on 12 April 2013, to which on the facts of that case are similar to the present facts.  He was employed as a salesman of metal products, is divorced but living with his family.

10. For D2, he is 26 years of age, from Malaysia, has a clear record and was educated up to Primary 6 and was previously employed as a chef in Singapore.  At the time of his arrest, he was unemployed.  He is married and his wife is in Thailand with a 4‑year-old daughter.

11. In dealing with the defendants’ sentence, I shall deal with them both together until I come to sentence them individually. I am told, first of all, that both defendants had gone to China for economic reasons.  The economy was not good in Malaysia and they looked for opportunities in Shenzhen. 

12. For D1, he was originally given an employment as a tourist guide taking tourists to Hong Kong for shopping.  After working for some time, he realised that the shoppers were using forged credit cards. He then became greedy and continued to take the shoppers to Hong Kong, knowing they were using forged credit cards as an employment.  Mr Necholas informs me that he would earn a fixed fee of between five to seven hundred dollars a day for taking these shoppers to Hong Kong with their forged credit cards.

13. Mr Kwan tells me that D2 was the shopper and he was told to contact D1 for arrangement of shopping in Hong Kong. D1 had told him what things to buy with those credit cards, and he had come to Hong Kong to fetch the 10 credit cards.  His reward was a promise of 10 per cent of the value of the goods purchased.  He had not been given any money before he was arrested.

14. As for the defendants’ mitigation themselves, both have pleaded guilty and of course have shown their remorse.  They have both saved the court time and with their pleas warrant the full one-third discount.

15. In sentencing for credit card fraud, the factors which the court take into account are well set out in the case of R v Chan Sui To No. 115 of 1996.  Those factors are not exhaustive but some of the factors are, for example, the size of the operation, the planning that had gone into perpetrating the fraud and whether there is an international dimension and whether the accused played a major role.   

16. In this case, Defendants, taking into account those factors, you had both come from China and of Malaysian nationality to Hong Kong to deliberately commit an offence.  There was therefore an international dimension.

17. At present, I see there were two of you involved in the operation but, clearly, as I can see it that there were others involved in this operation.  D1, it appears to me that you certainly played a more major role than that of D2, telling him where to purchase goods and which credit cards he had. 

18. The number of credit cards involved is also of importance.  In this instance, there were quite a large number of 10 forged credit cards.  Although the actual value of the goods purchased was small, that is about $5,600, and the attempted purchase was about $28,000, the fact is that these 10 forged credit cards would have undoubtedly led to a very large potential for losses in the future.

19. D2, as I mentioned, you played a lesser role than that of D1.  For D1, the aggravating factor in this case is the fact that you committed this offence whilst on bail for the offence to which you were convicted in April 2012.  In that case, Defendant, there were also forged credit cards involved for purchasing goods, and within one month of you being arrested, you came back to Hong Kong and continued to do the same thing. This is clearly an aggravating factor.

20. Defendants, in taking into account the above factors and I now sentence you to the following terms.

21. Defendants, for Charge 1, Defendants, had I convicted you after trial, for D1, I would have taken a starting point of 4 years’ imprisonment; and for D2, I would have taken a starting point of 3 and a half years’ imprisonment.  Giving you both credit for your pleas of guilty, those terms shall be reduced to 2 years 8 months and 2 years 4 months respectively for D1 and D2. 

22. For D2, on Charge 2, had I convicted you after trial, I would have taken a starting point of 3 years’ imprisonment. Giving you full credit for your plea of guilty, that term shall be reduced to 2 years’ imprisonment.  Those terms shall run concurrent to each other, making a total term of 2 years and 4 months’ imprisonment to which you, D2, shall be so sentenced.

23. D1, you are presently serving a term of 21 months’ imprisonment.  I must take into account the principle of totality.  Mr Necholas has informed me that this case could probably have been brought up together with the other case for sentence.  However, due to the investigative time taken by the police, this case has come on for sentence some four months later.  I therefore will consider totality of this sentence and that to which you have been given in April this year.  

24. Yesterday, I took 4 years as a starting point and reduced that to 2 years 8 months for charge 1, and I took into account that he was serving 21 months already.  So looking at these two terms together, what I should have said was that he should have had a total of 36 months’ imprisonment.  That is including the last one.  So that would mean that 15 months of this sentence should be served consecutive to that, which makes a total of 36 months overall.