HKSAR v. Nobuhle Ndlovu

DCCC 765/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 765 OF 2016

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Reasons for Sentence

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1.The defendant pleaded guilty to two charges, namely using false instruments and possessing a false instrument, contrary to section 73 and 75(1) of the Crimes Ordinance respectively.

2.On 22 June 2016 at about 1320 hours, the defendant arrived at the Standard Chartered Bank Central Branch at No 1 Wellington Street, Central, Hong Kong.  She used and produced a Standard Bank Visa card and a Republic of South Africa passport, both in the name of Sibongile Khumalo, to the bank staff, and requested to make overdraft money withdrawal in the sum of 20,000 from her purported credit card account.

3.The bank staff made inquiry of the Visa Card Centre and was told that the Visa card was forged. The case was reported to the police.

4.Upon police arrival, another false Visa card of Capitec Bank was found from the defendant’s wallet.

5.Government Chemist confirmed that the above 2 Visa cards were forged and the passport of the Republic of South Africa was also forged, where the questioned passport consisted of 32 inner pages and a sheet of biodata page of inferior printing quality, while the sheet containing the biodata page of the questioned passport had been substituted.

6.Under caution, the defendant stated that her genuine name was Nobuhle Ndlovu.  She was a South Africa passport holder and engaged in trading business.  She later acquainted with a Chinese male Chen one year ago.  Chen arranged for her to come to Hong Kong on 21 June 2016.  About 7 to 8 am she arrived in Hong Kong from Johannesburg via the Hong Kong International Airport, she then lived at a hotel in Kowloon.  The air ticket and hotel expenses were paid by Chen.  Chen also provided a mobile phone with SIM card to her. 

7.The defendant had passed her own passport to Chen.  In return, Chen gave the forged passport to her.  She knew that the passport was false, as her photo was affixed on the passport but the name was not her.

8.Chen also gave the above 2 Visa credit cards to her in the same name with the false passport.  She was then directed by Chen to go to the bank to make cash withdrawal in the sum of $20,000, but Chen did not enter the bank nor accompany her to conduct the transaction.  If the defendant successfully withdrew the cash, she was prepared to use the money to purchase goods in the PRC.

9.She could not provide further details or means to contact Chen, but she agreed that Chen’s arrangement was very suspicious.

10.The Immigration Department later confirmed that the defendant entered Hong Kong on 21 June 2016 at 8.21 hours via the Hong Kong International Airport.

11.On the date of offence, the defendant used instruments, namely the above forged credit card and forged passport, which she knew and believed to be false, with the intention of inducing staff members of the Standard Chartered Bank to accept them as genuine, and by reason of so accepting them to do some act to the bank’s prejudice.

12.The defendant also had in her own custody another forged credit card which she knew or believed to be false, with the intention that she or another would use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.

13.The defendant is aged 25, a national of Republic of South Africa.  She had no criminal record in Hong Kong.  Mr Tam submitted that she had 2 children, aged 3 and 6 to support, yet she was not married and she alone maintained the family.  The defendant worked as a hairdresser in South Africa at very low income.  Mr Tam further submitted that she was led astray by that Mr Chen whom the defendant recognised and if necessary she can be a witness if Chen is arrested.  However, Chen is too skilful to leave any way to contact him.

14.The defendant also submitted a mitigation letter telling that she is truly remorseful and she pleaded guilty and hoped for a lenient sentence.

15.Using false instruments and possessing false instruments are both serious offences.  In relation to the using of forged credit cards, in the Court of Appeal case HKSAR v Tu I Lang CACC 464/2006, it is stated that:

“Where the facts of the offence point to a small, unsophisticated operation involving only a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate.”

16.In the present case, the defendant used the forged credit card and forged passport intending to obtain overdraft withdrawal of 20,000 from the bank, together with the possession of another forged credit card also not in her name.  The facts were serious.

17.Considering all the background circumstances and mitigation, I adopt 3 years’ imprisonment as a starting point, reducing it to 2 years’ imprisonment upon guilty plea for the 1st charge.

18.For the 2nd charge of possessing a forged credit card, I adopt 2 years’ imprisonment as a starting point, reducing it to 16 months’ imprisonment upon guilty plea.

19.Finally, applying the totality principle, I consider it appropriate to make both sentences to be run concurrently.

20.Therefore, the sentence is as follows:

1st charge: 2 years’ imprisonment;

2nd charge: 16 months’ imprisonment, both charges to be run concurrently.

21.Therefore, the defendant is sentenced to a total of 2 years’ imprisonment for both charges.