HKSAR v. Somwat Nopparat

DCCC 1009/2018

[2019] HKDC 640

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1009 OF 2018

----------------------------------------

----------------------------------------

---------------------------------------

REASONS FOR SENTENCE

---------------------------------------

1.The defendant is convicted on her own pleas and admission of the facts of a total of six charges of using a false instrument, contrary to section 73 of the Crimes Ordinance and section 3(1) of the Aviation Security Ordinance. 

2.These offences arose out of the use of two forged credit cards, a purported Barclays MasterCard and an FIA MasterCard, on three different flights on aircrafts operated by the Dragon Airlines.  As we know, aircrafts run by Dragon Air are Hong Kong-controlled aircrafts. 

The facts

3.The facts can be summarised as follows.  At around 1:15 pm on 15 August 2018, the defendant boarded a Dragon flight, KA213, which was coming from Phuket to Hong Kong.  About 3:58 pm in the same afternoon, whilst the aircraft was on its way to Hong Kong the defendant used a Barclays MasterCard bearing her name to purchase two duty-free products worth a total of HKD $4,980.  At 4:09 pm the same afternoon, the defendant used a FIA MasterCard, also bearing her name, to purchase four duty-free products worth a total of HKD $4,590 this time.  On both occasions, the flight purser handling the sale was under the impression that the cards were genuine and having checked the defendant’s signatures on the sales invoices in question, he accepted the purchases.  The products purchased were then taken by the defendant. 

4.At around 6:15 pm on the same day, the defendant, having landed at Hong Kong International Airport, boarded a flight, flight number KA482, bound for Taipei.  Whilst the plane was on its way from Hong Kong to Taipei, the defendant made two purchases.  The first purchase was made by her at 7:39 pm using the forged Barclays MasterCard.  The products were worth HKD $4,980 for this purchase.  The second purchase, which took place only a few minutes later, was for four duty-free products worth a total of HKD $4,590.  This time she used the FIA MasterCard for payment.  The six items the defendant bought were then handed to her, which she took with her after the plane landed at Taipei. 

5.At about 11:15 am the very next day, ie, 16  August 2018, the defendant boarded another Dragon Airlines’ flight, KA485, to come back to Hong Kong.  At around noon, whilst the defendant was on board, she used first her Barclays and then her FIA MasterCards to make a purchase of a total of seven duty-free products.  As the seven items were worth HKD $9,595, the flight attendant split them by using the two cards.  The Barclays card was used to pay for three items worth HKD $4,605, whereas the FIA MasterCard was used for the payment of four items worth HKD $4,990. 

6.Now, what the defendant did not know was that in the same morning when she boarded a plane for Hong Kong, security officers of the Hong Kong Dragon Airlines were informed that four credit card transactions conducted by the defendant in the first and the second flights could not be processed.  A report was made by a staff of the airline and when the defendant alighted from her flight, KA485, police officers were waiting there for her.  All the duty-free items she purchased were found with her and so were the two forged credit cards. 

7.In a subsequent video-recorded interview police had with her, the defendant admitted, among other things, the following matters:- 

(a) One, she told police that she obtained both Barclays and the FIA MasterCards 3 to 4 months ago from a woman called Jin who she said left the cards at a bus stop at Bangkok for her to pick up. The defendant said she had given this woman Jin her name via the internet and she had told Jin that she was unemployed and needed money to take care of her family.

(b) Two, the defendant said in the interview also that she was then asked by this woman, Jin, to use the cards to make purchases and she used them on board the flights. The plan, the defendant said, was to buy duty-free products on flight and bring them back to Thailand for sale. She said she would get 20% of the sale proceeds that way.

(c) Lastly, the defendant said she did not know who made the cards or how they were issued. She knew, however, that they were false cards.

The defendant’s background

8.The defendant is 35 years old, a Thai national. This morning I was told by her solicitor, Mr Nasir, that she is a single mother of 4.  They are all daughters and they range from 7 to 13 years old.  The youngest daughter, ie, the one aged 7, I was told had an accident 3 years ago from which she had suffered what was variously called a protrusion or a bump at her head.  They are all in school back in Thailand.  The schooling, I was told, is free and the schools also give them a free meal each day.  However, the defendant remains the main carer of these young ladies and she is certainly, I was told, the major breadwinner both for herself and for her girls. 

9.The defendant had completed her secondary education and had worked as a saleslady and then a telephone operator up to 2009.  In 2014, she had assisted her mother with her home-based take-away business.  While she is helping her mother out, the defendant is also, in fact, working as a saleslady selling garments. 

10.In mitigation, considerable emphasis has been placed by Mr Nasir on the concerns about the children’s welfare, in particular, that of the youngest daughter who had an injury.  However, no supporting evidence of any kind has been put before the court about this claim.  In spite of the offer the court has made that the defendant may want to do something about it if she was to ask the court to seriously consider lowering the sentence on compassionate ground, that offer was declined.

The sentencing considerations

11.Dealing with the facts of this case first. From what I have recited earlier it is fair, in my view, that this is not a small, unsophisticated operation.  The contrary is true.  To my mind, it is a very well-planned, very sophisticated operation involving international flights.  The purchases were made with care so that the HKD $5,000 limit for each card’s use was not exceeded.  Also, as the purchases were all made whilst the aircraft was on its way from one country to another, the defendant was clearly taking advantage of the fact that the airline staff would only be able to verify with the card centre about the genuineness of the cards afterwards. 

12.In the case of HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, the Court of Appeal said this:-

“Those judgments which lay down a sentence of 3 years’ imprisonment or less for cases of simple credit card fraud are based on a number of sentencing principles and considerations. They are that counterfeit credit card offences require deterrent sentences; there is a need to protect the integrity of the credit card system; and the potential for loss is great and often will be far greater than the actual loss. In fact, it is precisely because of this last consideration that the actual loss will not necessarily be an important factor when it comes to sentencing a credit card offender; rather, it is this potential for loss which is the most important consideration.”

13.In another case, HKSAR v Loh Joo Hooi [2014] 3 HKC 301, an overall starting point of 3½ years’ imprisonment was approved by the Court of Appeal for a Malaysian national who had come to Hong Kong via Shenzhen and used two forged credit cards to purchase goods worth just under HKD $8,000 whilst in possession of three other forged credit cards.  As pointed out by the court in paragraph 18 of the judgment:-

“The aggravation lies in the international bringing of the instrument of crime over the border from another jurisdiction for the use or proliferation on the streets of Hong Kong.”

14.In the present case, of course, the credit cards were not used on the streets of Hong Kong.  Instead, they were used on Hong Kong-controlled aircrafts whilst they were on their way from one city to another.  But in my view, what the Court of Appeal has observed in the case of HKSAR v Loh Joo Hooi, which I have cited earlier, applies with equal force.  In fact, the present case is almost on all fours with the facts in the case of HKSAR v Khumalo Paulos, CACC 176/2014.  The applicant in that case also boarded a Hong Kong-controlled aircraft which was flying from Bangkok back to Hong Kong. During the flight he attempted to use a United Overseas Bank MasterCard which was subsequently found to have been forged.  The purchase fell through as the flight purser suspected the card to be a false one.  The applicant was, like the defendant in the present case, arrested when the plane landed in Hong Kong.  Upon a body search, the applicant there was found also to have a second false credit card.  A total term of 3½ years’ imprisonment was imposed by the sentencing judge, a sentence which was approved by the Court of Appeal (before Mr Justice McWalters). 

15.In the passage which was clearly approved by his Lordship, the sentencing judge said that:-

“Where a defendant was obviously part of a wider organisation which had caused credit cards to be printed specifically for him, then the Court of Appeal had said that a starting point of 3 years 6 months’ imprisonment was appropriate.”

16.Now, as considerable emphasis has been placed by Mr Nasir on the concerns the welfare of the young daughters, I think I should also say a quick word on the case of HKSAR v Chan Kin Chung & Anor [2002] 4 HKC 314, a decision which Mr Nasir has helpfully drawn my attention to.  In that case, the defence had also laid considerable emphasis on the fact that the 2^nd applicant was the mother of three young children who were respectively 7 and 3 years old and 16 months old at the time.  As the 1^st applicant was the husband of the 2^nd applicant, for both of them to be imprisoned, it would have caused considerable hardship to the family.  On that basis, the court was asked as an act of mercy for the early or earlier release of the mother.  In support of their plea for leniency, affirmations from the grandparents were put before the Court of Appeal in which it was said that the children were displaying behavioural problems.  This contention was also supported by a psychiatric report put before the court.  The Court of Appeal was then taken through quite a number of English decisions in which the court there have decided to lower the sentence on compassionate grounds.

17.In refusing to reduce the term, the Court of Appeal made the following observation:-

“A balanced approach to sentencing is one that has proper regard to essential sentencing principle and policy which includes the principle that the adverse effect of imprisonment upon an offender’s family will not normally be taken into account and is one that has full regard to the seriousness of the crime, although not ignoring credible evidence that may justify a merciful sentence.”

18.The Court of Appeal continued to say this, a few lines down:-

“But we say, however, that those circumstances will arise only exceptionally and that they already embrace considerations of compassion and mercy such that there is no need for recourse to the exercise of some further residual merciful discussion.”

19.Now, taking into account the facts of the present case, the family background of the defendant, and with the above principles in mind, I am of the view that a proper starting point for each charge is one of 3 years and 3 months, ie, 39 months’ imprisonment. With the one-third discount, which the defendant is, of course, entitled to in light of her guilty pleas, her sentence will be down to one of 26 months’ imprisonment for each charge. 

20.As Charges 1 and 2 were committed at or at about the same time, I order that the terms to run concurrently between them.  The same applies to the terms imposed on Charges 3 and 4, on the one hand, and those on Charges 5 and 6, on the other. 

21.However, the court cannot lose sight of the fact that the offences under Charges 3 and 4 and that under Charges 5 and 6 were committed, of course, at a different time and on different flights.  Accordingly, a partly consecutive term is clearly called for. 

22.That said, to err on the lenient side, given that the defendant has, on the face of it, a young family waiting for her to return, I shall order that 1 month of the 26 months’ term for Charges 3 and 4 to run consecutively to the term imposed for Charges 1 and 2.  Likewise, for the same reason, I shall order that 1 month out of the 26 months’ term imposed for Charges 5 and 6 to run consecutively to the 26 months’ term for Charges 1 and 2, making, therefore, a total term of 28 months’ imprisonment.  That is the lowest this court can do for the defendant.