HKSAR v. Chen Shen (also known as Chen Sang)

DCCC 209/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 209 OF 2017

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Reasons for Sentence

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Charges

1.D pleads guilty to attempting to obtain property by deception (1^st Charge) and possessing false instruments (2^nd Charge). 

Facts

2.On 6/10/2016, D attempted to use a card, purportedly a Union Pay credit card, to purchase 2 gold bars for $75,272 in a jewelry shop in Tsim Sha Tsui.  The shopkeeper was alerted by the card-reader message of “invalid / lost card”.  As the transaction could not be completed, the gold bars were not handed over to D.   A report was secretly made to the police.  The police soon arrived to arrest D and seized the card in question (Exh. P1 the subject-matter of 1^st Charge).  A body search revealed, among others, 30 other cards (ie 28 bank cards and 2 credit cards the subject-matter of 2^nd Charge) on him. 

3.All 31 cards were examined and found to be false cards.  The prosecution indicates that the potential for loss of them could not be ascertained and no potential for loss could be caused. 

4.D is not a Hong Kong resident.  He was a visitor from Mainland allowed to stay until 12/10/2016.  The prosecution does not seek to allege that he came to Hong Kong for the purpose of committing the present offences. 

Mitigation

5.He is 44 years of age, of secondary school education level.  His parents, wife and 12-year-old son are in Mainland.  He claims to be a coffee and wine merchant before arrest.  He used to come to Hong Kong on business once or twice every month.  He had 2 immigration fraud records in 1996. 

Sentencing considerations

6.In HKSAR v Cheng Sui-to [1996] 2 HKCLR 128, 131, the Court of Appeal held that a sentencing judge would need to consider at least 5 factors as follows before deciding the level of sentence: 

(1) The size of the operation e.g. whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards;

(2) The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent;

(3) Whether there is an international dimension;

(4) Whether the accused played a major role, e.g. 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 keeper;

(5) Whether there is a plea of guilty.

7.Yang CJ observed that:

“… 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 element, should receive a sentence of five to six years after trial. Sentences may be adjusted upwards or downwards according to circumstances.

The sum of money involved is of course one of the factors to be taken into account. It is not even the most significant factor.”

8.In HKSAR v Ng Swee Thiam [2000] 1 HKLRD 772, the court commented that the potential for loss due to a false credit card would be a more significant consideration than the actual amount lost due to the fraudulent use of it. 

9.On this issue, the prosecution refers to HKSAR v Arturs Ludins CACC 363/2013. The defendant failed in his attempt to purchase a bottle of whisky for $2,500 by a forged credit card in his name.  His wallet contained 4 other forged credit cards in his name.  In a subsequent search, there were 63 other forged cards found on him, some in his name.  In total there were 68 forged cards in the whole case, 7 of which were credit cards and the other 61 were debit cards or gift cards.  He had an encoder with him for encoding data onto the cards.  He pleaded guilty to uttering a false instrument for his attempt to purchase the whisky and possessing 68 false instruments with intent to induce others to accept them as genuine.  Based on the examination results and other prosecution evidence, the judge took the view that all the 68 cards were to be regarded as forged for the purpose of sentencing, to be aggravated by the possession of an encoder.  The potential for loss could not be ascertained.  The overall sentence of 3 years 8 months was upheld on appeal.   

10.There are 6 cases handed up by Mr. Pang for comparison of sentences. 

11.In HKSAR v Cheung Sui Yin CACC 468/2005, the defendant possessed 14 counterfeit credit cards belonging to banks in England, the Netherlands, and Turkey when arriving at the Lowu border control point from the Mainland.  Each card had caused the issuing bank an average loss of about US$3,000.  She claimed to have picked up the cards on a taxi in Shenzhen.  A sentence of 4 years 6 months was upheld on appeal. 

12.In HKSAR v Tu I Lang CACC 464/2006, the defendant was a Taiwanese visitor who had not come to Hong Kong for long when he attempted to use a false credit card (1^st Charge) and possessed 2 others (2^nd Charge).    The Court of Appeal took an overall starting point of 3 years. 

13.In HKSAR v Chan Ka Chung CACC 379/2010, the defendant attempted to use a false credit card to buy a mobile phone of near $9,000 but failed (1^st Charge). He returned to the same shop after a few minutes to attempt to use another false credit card but also failed (2^nd Charge).  When arrested shortly afterwards, he had with him the second card and a third card, a genuine credit card he admitted to have kept but not used when found a year ago, a case of theft by finding (3^rd Charge).  The first card was never recovered.  The Court of Appeal took an overall starting point of 3 years 6 months.

14.In HKSAR v So Wah CACC 323/2011, the defendant pleaded guilty to 3 charges.  One charge was for his failed attempt to use a genuine credit card not relating to him for ATM cash withdrawal of $1,000.  Another charge was for his attempt to use it to purchase jewelry for $8,736.  He was soon arrested with another genuine credit card not relating to him, the subject-matter of handling stolen property.  The Court of Appeal upheld the overall sentence of 2 years 6 months for all charges. 

15.In HKSAR v Loh Joo Hooi CACC 129/2013, the defendant was a Malaysian who entered Hong Kong en route for the Mainland and then returned to Hong Kong.  He used a false credit card to make 2 purchases in Mong Kok, the successful one for over $3,500 worth of goods being the 1^st Charge whereas the failed attempt for over $4,400 worth of goods being the 2^nd Charge.  The 3^rd Charge was for his possession of 3 other false credit cards.  The overall starting point of 3 years 6 months was approved by the Court of Appeal. 

16.In HKSAR v Leong Yin Chun DCCC 826/2016, the defendant was a Malaysian citizen arrested at the Hong Kong airport for bringing 22 false credit cards to Hong Kong for use.  The potential for loss was US$51,390 in total.  The court took a starting point of 3 years 3 months. 

Sentencing D

17.If it had been a completed transaction, I would have taken a starting point of 36 months for the 1^st Charge.  As it was an attempt, I take a starting point of 30 months.  One-third off for the timely plea of guilty, the sentence is 20 months. 

18.The potential for loss pertaining to the 30 cards, the subject-matter of the 2^nd Charge, could not be ascertained.  Nor is it like the case of Arturs Ludins (cited above) where the defendant had an encoder to facilitate the cards with data.  For the sheer diversity and quantity of cards, I take a starting point of 3 years.  One-third off for the timely plea of guilty, the sentence is 2 years. 

19.On totality basis, I order the sentences to be concurrent.