HKSAR v. Ng Chung Hing

DCCC 13/2018

[2018] HKDC 973

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 13 OF 2018

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REASONS FOR SENTENCE

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1.Defendant Ng Chung Hing pleaded guilty before me to one charge of Attempted to use a false instrument, contrary to sections 73 and 159G of the Crimes Ordinance, Cap 200.  The particulars of offence are that Ng Chung Hing on 3 May 2011, at “Wellcome”, Sheungshui Town Center, No 9 Chi Cheong Road, Sheung Shui, New Territories, in Hong Kong, attempted to use an instrument which was, and which he knew or believed to be false, namely one HSBC VISA card in name of Ng Chung Hing, with the intention of inducing Man Chun Hei of The Diary Farm Company, Limited, to accept it as genuine, and by reason of so accepting it to do or not to do some act to her own or any other person’s prejudice.

Admitted Facts

2.The facts admitted by Mr Ng may be summarized as follows.

3.Ms Man Chun Hei (PW1) was a cashier at the Wellcome Supermarket in question.  On 3 May 2011, defendant Mr Ng went to the supermarket and took 3 cans of milk powder and 2 boxes of bird’s nest totaling in value of $1,141.80 to PW1 for payment.  PW1 charged him for an additional sum of $0.5 for a plastic bag.  The total amount due was therefore $1,142.30.

4.Mr Ng passed over a credit card – an HSBC VISA card in the name of Ng Chung Hing – for payment.

5.PW1 found the card’s colour abnormal and passed it to the manager for verification.  The manager called the card centre and received information that the 16-digit number on the card did not exist in HSBC’s records.

6.When questioned, Mr Ng said that it was his friend’s card.

7.Mr Ng tried to escape but was intercepted by the staff.  Police came and arrested Mr Ng.  Under caution, Mr Ng said a friend gave the card to him for payment use; so he tried to use it.

8.In a cautioned interview, Mr Ng admitted that:-

(a) He knew the card was forged;

(b) A friend had given it to him in Sheung Shui for payment use; and

(c) It was the first time that he tried to use it at the supermarket.

9.The forensic scientist confirmed that the subject card was forged because he found discrepancies in the design details of the hologram and the printing details of the “VISA” logo by comparison with a control card.  He also found various spelling mistakes on the subject card.

10.Mr Ng was given police bail but he left Hong Kong on 21 June 2011.  He returned to Hong Kong on 24 November 2017 and was then arrested.

Criminal record

11.The agreed criminal record shows Mr Ng has 6 previous convictions accumulated over 3 occasions from 1993 to 1998 relating mostly to driving offences for one of which he was imprisoned for a short period.

Antecedents

12.The agreed antecedents statement shows that Mr Ng is aged 63 (56 at the time of the offence).  He was educated to F1 in the Mainland.  He was unemployed at the time of the initial arrest.  At that time, he was living with his wife and two sons.

Mitigation

13.Ms Judy Ma of counsel mitigated on behalf of Mr Ng.

14.The mitigation submissions may be summarized as follows.

15.Shortly before the initial arrest, he was a delivery worker cum driver and earned $10,000 a month.  Due to old age and poor health, he lost his job.

16.On the day of the offence, he just tried to use the forged card for fun; in fact, he had sufficient money on him to pay for the goods.  For the milk powder that he intended to purchase, he had in mind taking it back to the Mainland for use by the grandchildren of a friend.  He intended to use the Bird’s nest by himself.

17.On 21 June 2011, he went back to the Mainland to visit a friend and intended to return to report police bail on the next day. However, he was prevented from doing so because he was arrested and detained by the Mainland authorities for having knocked down someone by vehicle.  He was only allowed to leave the Mainland after one year.  By that time, his wife had left him so he had no home to return to and he decided not to return to Hong Kong.  Through the introduction of a friend, he went directly to Malaysia to work there.  Whilst there, he was pickpocketed and lost all his identity documents and he was put in a refugee camp by the Malaysian authorities for failure to produce identity documents.

18.From that time till 2017, he resided in a refugee camp.  In 2017, he was able to get both an identity document and a free air ticket which enabled him to return to Hong Kong.  Upon arrival in Hong Kong, he told the immigration officer that he was a wanted person in Hong Kong.

19.He does not know the whereabouts of his family now.

20.Ms Ma submitted an undated mitigation letter written in Chinese by a cell mate on Mr Ng’s dictation.

21.Ms Ma referred to para 10 of the case of HKSAR v Tu I Lang, CACC 464/2006.

22.As regards the authority submitted by the prosecution namely, HKSAR v Lo Kam Fai [2016] 2 HKLRD 308 which stood for the principle that a defendant who pleaded guilty only after having absconded from a pending trial should only be entitled to a discount of 20 to 25% instead of the usual 1/3, Ms Ma sought to distinguish that case on the basis that here, Mr Ng had only failed to report police bail and not breached a court bail causing waste of prosecution’s and court’s time.  Besides, Ms Ma contended that the abscondence did not become voluntary until one year later.

23.Lastly, Ms Ma submitted that the activity that Mr Ng was involved in was a small and unsophisticated operation using only one forged card, and the money amount was small.  Ms Ma asked for a lenient starting point ie one of slightly less than 3 years and she also asked for a full 1/3 discount.

Sentence

24.I have considered the mitigation submissions made by Ms Ma and the authority submitted by the prosecution.

25.I have considered the mitigation letter the contents of which are mainly to explain the time spent in the refugee camp in Malaysia.

26.I have seen the actual forged card handed up temporarily by the prosecution without objection from the defence.

27.I have considered the sentencing authorities of R v Chan Sui To & Anor [1996] 2 HKCLR 128, HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517, HKSAR v Tu I Lang, CACC 464/2006, and HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242.

28.In Lam See Chung Stephen, at 243, in particular, it was said that for a case of a simple small-scale use of forged credit cards, a sentence of 3 years’ imprisonment or less was appropriate.

29.I am of the view that principle the extracted from Lo Kam Fai as elaborated on above is best left to apply to cases where at least a trial date has been fixed.

30.Using a forged credit card is a serious offence and must be deterred.

31.I have taken into account that only one card was used.

32.I note there is no international element nor is there evidence of the potential for loss.

[Mr Ng please stand]

33.Given the value of the intended purchase was not large, I will adopt a slightly less severe starting point of 2 years 9 months’ imprisonment in the case of Mr Ng.

34.He has pleaded guilty in good time and will enjoy the benefit of a full 1/3 discount.

35.There are no other mitigating factors of sufficient weight to warrant a further discount.

36.Mr Ng will go to prison for 22 months.