HKSAR v. Jiang Jinjin and Another

DCCC 780/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 780 OF 2017

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Reasons for Sentence

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1.The defendants have pleaded guilty to the charges they face on this indictment. The 1st defendant faces a single charge of using a false instrument, contrary to section 73 of the Crimes Ordinance, and two further charges of theft relating to sums of money that were the property of the Dah Sing Bank. The 2nd defendant faces a single charge of possessing false instruments, contrary to section 75(1) of the Crimes Ordinance, and they detail some six credit cards which were found in his possession.

2.The defendants both hail from mainland China and came into Hong Kong on the 25th, for the 1st defendant, and the 27th, for the 2nd defendant, of April 2017.

3.The 1st defendant was apprehended following the commission of the 1st offence, which was committed at the Chin Fai Gold and Jewellery Company in Johnston Road in Wan Chai.  The 1st defendant had gone in there with another person described in the facts as WP1, or wanted person 1, and they had gone in there to make a purchase of gold ornaments.  The defendant has selected some 10 gold ornaments and asked to buy them, but the credit card that was used, which was a Unionpay debit card, described to belong to JJ Wong was in fact in the possession of the wanted person.  This had been handed over for the purchase of the jewellery.

4.The total value of the jewellery attempted to be purchased was $141,000.  The code had been inputted for the credit card and was apparently accepted.  Then a dispute arose as to who was to sign the card, and it was eventually discovered by the manager of the company that the card in fact had no signature, and he then considered that the matter should be reported to the police.

5.At some point during this purchase process the 1st defendant had gone out and made two withdrawals of $5,000 using that card from a nearby bank, the Dah Sing Bank.

6.Following the suggestion by the manager that the police should be called, the defendant and the wanted person had left the store and fled.  The defendant was himself apprehended.

7.At the time he said he had been given the card by the wanted person and also the code, and told to input those into the point of sale machine.

8.The police then went to investigate the Mirador Mansion Guesthouse where the 1st defendant had been residing.  On entering Room 16, which was the room the defendant identified as where he had been residing, the 2nd defendant was located.  He was found in the toilet.  He was holding a black backpack and found to be in possession of six false instruments, namely the six counterfeit credit cards set out in the 4th charge on the indictment. Also found in that room was a laptop computer which connected to a card reader, or encoder, and that had been used to check the account balance of an account which was matched to two of the counterfeit credit cards found in the possession of the 2nd defendant.

9.The credit card JJ1 that had been used by the 1st defendant was a purported China Construction Bank Unionpay debit card with no name or signature.  It had been left in the jewellery store, and it was confirmed that that card was forged.

10.In relation to the six false instruments found in the possession of the 2nd defendant, the details of those are listed out in the facts, but they are purported Visa cards, purported Unionpay cards.

11.The defendants made various admissions under caution as to their role in this matter, but of relevance is the fact that they both, in the admissions made to this court, firstly, the 1st defendant admits that the card JJ1 was a forged card and he, with that knowledge, intended another or others to accept it as genuine; and the same admissions are made in respect of the 2nd defendant.

12.Turning to their backgrounds, the 1st defendant is aged 28.  He is a China Two-Way Permit cardholder of clear record, with education up to secondary school level in China.  He has worked as a vehicle mechanic and factory worker.  He says also he has a clear record in China.  He is at present married and lives in Jiangsu Province with his wife, a son, his parents and his younger brother.

13.The 2nd defendant is aged 27.  He has a China passport and a clear criminal record; educated to junior secondary school in mainland China and had occupation as a factory worker before he came to Hong Kong.  As I have said already, he has a clear record both here and apparently in mainland China.  He is single and lives with his mother and a younger brother.

14.As far as the mitigation is concerned, the defendants point to the fact that both of them were at a low level in this enterprise; what I think could be described as a cog in the wheel.  They were the people who were needed to obtain the benefits of the card but were not involved in any other aspect of what must have been a syndicated crime.  Both defendants can point to their clear records both here and in China, their remorse, and their pleas of guilty.

15.As far as the factors for sentence in a case like this are concerned, the leading case that determines the approach is the case of R v Chan Sui To which was decided by the Court of Appeal, 115/1996.  In the judgment, the court said that a number of authorities were cited to indicate the level of sentence for credit card frauds.  It said a sentencing judge would need to consider various factors, including, firstly, the size of the operation, whether it involved large sums of money, whether it concerned a large number of persons or forged credit cards; secondly, the planning that has gone into perpetrating the fraud, whether it was elaborate or simple, whether technical skills were used, and to what extent; thirdly, is there an international dimension; fourthly, whether the accused played a major role, running the 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 custodian or keeper; and then, finally, whether there is a plea of guilty.

16.The court went on to say that allowing for different facts and varying degrees of culpability, it is impossible to formulate a set of principles for sentencing from the previous decisions.

“We think, however, it would helpful to the courts if they were guided by some criteria. We would therefore suggest an accused who plays an active but not necessarily 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. The sentence may be adjusted upward or downward 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.”

17.However, in a later case of HKSAR v Tu I Lang CACC 464/2006, in that case the appellant was a Taiwanese national arrived in Hong Kong the day before, and he tried to purchase a mobile phone from a shop in Mong Kok using a forged credit card.  The shop assistant, suspicious of the card, had called over two police officers.  On search, two further credit cards were found on his person.  In that case, the Court of Appeal did consider the case of Chan Sui To and other cases that were cited, and said that where the operation could be described as small scale, they came up with the following guidelines.  This is at paragraph 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 materially linking the offendant to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate.”

18.In this case, of course, except for the small sums of money taken by the 1st defendant, no actual goods were obtained in the 1st charge.  The 2nd defendant is simply charged with the possession of the false instruments.  They could be described as being on the on the outline of the offence.

19.As far as what is sometimes referred to as the international dimension, of course, these people are from mainland China, and they are not residents of a different nation to Hong Kong.  It certainly involved crossing a border to come here, and I think one could define it as a cross-border crime, but not necessarily an international crime.

20.The offence itself for the 1st defendant involves a single offence involving a single card, and, for the 2nd defendant, what is, by the standards of these courts, a relatively small number of cards.

21.After considering all the factors put forward in mitigation and the factors put forward by the facts of this case, I consider that the overall culpability of the defendants can be considered to be equal, and that the overall starting point for sentence for both defendants should lie within the range set out in the case of Tu I Lang.  That is, a starting point of 3 years’ imprisonment.

22.Accordingly, I will impose the following sentences on the defendants.

23.For the 1st defendant, he faces three charges. They all involve the use of the card.  I take a starting point at 36 months’ imprisonment for each charge.  I reduce that to 24 months’ imprisonment for the defendant’s plea of guilty.  I will order those sentences to be served concurrently; it was, effectively, one single operation. 

24.So the 1st defendant’s overall sentence will be one of 24 months, or 2 years’, imprisonment.

25.As far as the 2nd defendant is concerned, on the 4th charge, I will also take a starting point of 36 months’ imprisonment and reduce that to 24 months’ imprisonment for his plea of guilty, and that will be his sentence on the 4th charge.