HKSAR v. Wu Jianyu

DCCC 424/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 424 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant has pleaded guilty to the charges that he faces, namely 2 counts of using a false instrument, contrary to Section 73 of the Crimes Ordinance, Cap. 200, one count of attempting to use s false instrument, contrary to Section 53 and 159G of the Crimes Ordinance, Cap. 200 and one count of possessing false instruments, contrary to Section 75(1) of the Crimes Ordinance, Cap. 200.

2.The offences occurred on the same day, and involved a total of 4 forged credit cards.

3.Facts admitted by the Defendant disclosed that at about 6 p.m. on 22 February, 2016, the Defendant went to a shop named ‘Suning’ at Shop No. 455, 4^th floor, Tsuen Wan Plaza, Nos. 4-30 Tai Pa Street, Tsuen Wan where he wanted to buy an iPhone 6S.  There, he was served by a saleslady Ms Fan Ka-wing – he told her he wanted to buy an iPhone 6S. He took out a forged credit card, as set out in the particulars of Count 3, and tried to effect payment with that forged card.  However, at that point the manager of the establishment, Mr. Kwok Shun-kwong, walked over and opined that the credit card was a forged one. He thus reported the matter to the police, who arrived shortly thereafter.

4.When questioned, the Defendant admitted that he had purchased four forged credit cards on the Mainland on 20 February, 2016, and he came to Hong Kong to buy phones with the forged credit cards on 21 February, 2016 and he had already bought 6 iPhones using the forged credit cards.

5.The Defendant was arrested and cautioned. Under caution, he produced the forged credit card he had just tried to use to make the purchase of the iPhone 6S (Count 3).

6.When searched, the 6 iPhones in their original packing were found from his bag. He produced the forged credit card he had used to buy two of these iPhones earlier that day, as well as the receipts for the relevant transactions (Counts 1 and 2).  He was arrested and cautioned in respect of these two transactions and admitted under caution that he knew it was wrong to use the forged credit cards.  In respect of the other 4 iPhones found from his bag, he admitted they were purchased on the day before at 4 different shops, using the same forged credit card as he had used for Counts 1 & 2 but he had forgotten the location of the 4 shops and had thrown away the purchase receipts.

7.A further search of his bag was conducted and 2 other forged credit cards were found, the subject matter of Count 4. There were also 2 phone chargers, which the Defendant said were gifts for the purchase of the iPhones the day before, although he could not remember from which shop. He also admitted that he had bought all four forged credit cards for RmB400 in Shenzhen 2 days before – he had ordered the 4 forged credit cards from “Taobao” on the internet on 20 February, 2016, providing his English name to the seller. The transaction was completed at the Chang Ping train station at around 12 noon on 21 February, 2016, when he was given the 4 forged credit cards by a male to whom he paid RmB400.00.  He then came to Hong Kong via Lo Wu at around 6 p.m. on 21 February, 2016. The Defendant is a two-way permit holder.

8.The Defendant is now aged 35 years.  He has a clear record. He is from Mainland China and came to Hong Kong on 21 February 2016.  His family is back in China.  In China, he was a part-time casual worker earning RmB3,500.- each month. In the Background Report I had called for, he had told the interviewing officer that he had been working as a courier for Wen Da Courier Company in Tai Shan in Guangdong in recent years. Although he is single, he has a daughter, now aged 6 years, from a previous relationship. In mitigation, Counsel informed the Court that the Defendant lives with his daughter, his father aged 62, a watchman, and his mother, aged 56, a housewife. He was the sole breadwinner of the family.  He had committed the present offences because he was urgently in need of money to pay a fine of RmB50,000.- to the Birth Control Bureau in China – he was fined as his daughter was born out of wedlock – he had been unable to register her birth as his ex-girlfriend had deserted him after giving birth to the daughter and taken away the birth certificate. He had spent all his savings to obtain a replacement birth certificate. He was then fined RmB50,000.- which he could not afford to pay and offended to earn some ‘quick money’. In the Background Report, he told the interviewing officer that “his cohabitant has deserted the family leaving his daughter under the care of the grandma in home village last year”.

9.In HKSAR v. Tu I Lang, CACC 464/2006, the Court of Appeal referred to the decision of R. v. Chan Sui To [1996] 2 HKCLR 128 at 134 :

“8. It is true that in R. v. Chan Sui To [1996] 2 HKCLR 128 at 134, this court said in dealing with the range of sentences imposed for credit card offences in various cases cited to it :

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

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 point of sentences of three years’ imprisonment, where the operation involved can be fairly described as small scale.”

The Court further said:-

“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 linking the offender to a larger operation, then a starting point of three years’ imprisonment or less would be appropriate.”

10.Offences involving forged credit cards are all serious offences.  I need only to quote the judgment of Litton J.A. in R. v. Kwan Ying-ho, CACC 527/1992 that: “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.”

11.In HKSAR v. Cheung Ka-wo, Johnny, CACC 136/2001, referred to by Defence Counsel, Stuart Moore, V-P, in dismissing an appeal on similar charges as herein where a starting point of 3 years’ imprisonment was used, said:-

“11. It is well known that in this jurisdiction severe sentences are given to those who commit offences of the kind with which we are presently concerned as a deterrent to others who are like-minded. One justification for this is that the integrity of the credit card system is highly important in this day and age and the confidence which people, as Mr. Madigan pointed out in the course of his argument, are entitled to place on this aspect of modern commercial life is necessarily eroded by others who attempt to beat the system by fraudulent methods.”

12.For the purpose of sentence, I am prepared to accept the account given to the police by the Defendant.   It follows that he was not part of a syndicate involved in using forged credit cards to obtain goods. There was no elaborate planning or equipment, and the number of forged credit cards involved is small.  However, I do find that there is an international dimension.  The Defendant bought these forged credit cards via the internet in China and brought them from China to Hong Kong to use them here in Hong Kong and purchase telephones using the forged credit cards. There is premeditation and he played an active role in committing these offences. In HKSAR v. Hoong Pang Chong, CACC 344/2011, the Court of Appeal held that the starting point of 3 years’ imprisonment should be increased by another 6 months’ to reflect  the international element.  In respect of the international dimension in cases of credit card fraud, the Court of Appeal in  HKSAR v. Loh Joo Hooi, CACC 129/2013, said, at paragraph 18:

“......Be that as it may, we are dealing with a foreign national coming from Malaysia via the Mainland with five forged credit cards which he used to obtain goods worth just under HK$8,000 within hours of his arrival in Hong Kong. The judge rightly found, and Mr. Hung does not dispute, that there was clearly an international element to the commission of the offences on those facts alone. We should, however, make clear that it is not, in this case, the fact that the applicant is a foreign national who happens to have committed a crime in Hong Kong, which provides the aggravating international element for sentencing purposes: the aggravation lies in the intentional bringing of the instruments of crime over the border from another jurisdiction for their use or proliferation on the streets of Hong Kong.’

13.Although the value of the goods to be purchased using the forged cards was not large, it is the potential for loss which is the most important consideration  (HKSAR v Ng Swee-thiam [2000] 1 HKLRD 772).

14.The people who go into the shops to make the purchases are vital for the use of forged credit cards. Without these persons being prepared to go into the shops to buy the goods, the whole point of the forgery fails.  So the people who use forged credit cards in this way have got to be deterred, and because of that, the court takes a very serious view of people who do what the Defendant herein did.

15.It was only because of the vigilance of the staff at the shop who were suspicious about the card that the Defendant tried to use for Count 3 that the offences have come to light.  Had that not happened, I have no doubt that the Defendant would have continued to use the forged credit cards he had bought in China to purchase goods here in Hong Kong. Although the Defendant is convicted of an attempt rather than a full offence in respect of Charge 3, the facts which he has admitted clearly show that he had done everything necessary for the commission of the full offence and only failed because staff in the shop suspected that the credit card he had given to pay for the purchased item was a forged one.

16.The only mitigation of weight before me really is the Defendant’s pleas of guilty, which reflect his remorse. I have borne in mind all that has been urged upon me in mitigation on behalf of the defendant, as well as the authorities submitted and the contents of the Background Report now before me. Save for the pleas of guilty, I see no other mitigating factors to warrant further discount. As has been said time and again, financial need is not a mitigating factor.

17.On each of these charges, in my view an appropriate starting point is 3 years and 6 months’ imprisonment. Giving the Defendant a discount of one third to reflect his pleas, he should be sentenced to 2 years and 4 months’ (i.e. 28 months) imprisonment on each charge. Although each offence is separate and distinct, I have borne in mind the totality principle of sentence.  I have also borne in mind that all the offences of which the Defendant has been convicted were committed on the same day.  I order that the sentences on Charges 1 to 4 are to be served concurrently.