HKSAR v. Choo Yew Kee and Another

DCCC 314/2019

[2019] HKDC 1131

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 314 OF 2019

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REASONS FOR SENTENCE

1.D1 and D2 pleaded guilty to a joint charge of "Conspiracy to use false instruments". They came from Malaysia to purchase consumer goods at retail stores using forged credit cards.

Summary of Facts

Background

2.In September 2018, American Express ("AMEX") complained to Hong Kong Police about forged AMEX credit cards being used to make purchases in Hong Kong and Macau, mostly in Apple Stores.

Arrest and Seizures

3.Between 12:30 p.m. and 4:00 p.m. on 29 September 2018, police officers observed D1 and D2 trying to purchase electronic goods from the Apple Stores located in Causeway Bay, Kwun Tong and Shatin using credit cards.  However, none of the transactions were successful.  D1 was also seen trying to purchase goods from a "Pandora" shop, but the transaction was declined.  Their attempted purchases amounted to an aggregate sum of almost $360,000.

4.About 3:50 p.m. on the same day, D1 and D2 met up at the L3 Level of New Town Plaza in Shatin.  Police officers arrested them as they were walking towards the Shatin MTR Station.

5.Amongst other things, the Police found on D1, 12 credit cards bearing the names "YK CHOO" or "MR CHOO"; and on D2, 6 credit cards bearing the name "NICHOLAS".  Those credit cards included AMEX, VISA and Mastercard.  Forensic examination confirmed that all the credit cards seized from D1 and D2 are forged.

Investigation Results

6.Out of the 12 forged credit cards found on D1, 9 were used in 17 unsuccessful sales transactions involving a total sum of approximately $410,000; whereas 3 of the 6 forged credit cards seized from D2 were used in 3 unsuccessful sales transactions involving a total sum of approximately $94,000 and once in Macau involving about $32,000.

7.According to AMEX and the CCTV footage of some retail stores, D1 made successful purchase at 4 different stores using 4 other AMEX cards involving a total sum of approximately $7,600.

Admissions

8.In his video recorded interviews, D1 claimed that he had borrowed money due to gambling.  Since he was unable to repay his loan, he was arranged by the moneylender to buy consumer goods using forged credit cards.  D1 admitted that he arrived at Hong Kong from Malaysia on 18 September 2018 and started to make purchase on 19 September.  He did not know D2, but was told to pick him up at the Hong Kong airport on 28 September.  They then went to Macau and returned to Hong Kong in the early hours on 29 September.

9.In his video recorded interview, D2 claimed that a friend named "Ah Lung" asked him to shop with some credit cards in return for a generous reward.  He arrived at Hong Kong on 28 September 2018 and was picked up by D1 at the airport.  They then went to Macau and met with Ah Lung there.  Ah Lung gave D2 the 6 forged credit cards and asked him to buy some expensive products such as iPhones using those credit cards.

10.The cell phones of D1 and D2 were examined.  Text messages contained in the respective WeChat Apps seem to support their assertions.

Mitigation

D1

11.He is 40 and has a clear record.  His counsel Mr. Wong informed me that D1 is married with 2 children (aged 16 and 14).  Before coming to Hong Kong, he was the sole bread winner of his family, earning about HK$9,000 per month.  In mitigation, Mr. Wong submitted that D1's mother, who recently passed away on 25 July 2019, was a long-term kidney patient.  At the same time, D1's son suffers from ADHD and needs to attend a special school which requires extra tuition fees.  In 2018, D1's mother required a kidney transplant and the medical fees were about HK$50,000.  D1 borrowed money from a moneylender, but was unable to repay the loan.  He felt he had no choice but to follow the instructions of the moneylender.

D2

12.He is 22 and has a clear record.  His counsel Mr. Wong informed me that D2 is single and resides with his maternal grandmother.  Prior to his arrest, D2 worked as a DJ earning about HK$3,000 per month.  D2's parents were divorced when he was 12.  He was looked after by his maternal grandmother since.  Both his father and maternal grandmother suffer from various health problems.  D2 met a customer named "Ah Lung" who offered to help him earn some quick money to fund his father's heart surgery.  He then foolishly came to Hong Kong to use the forged credit cards to shop.

Sentence

13.All the credit cards found on D1 and D2 bear their names (or parts of their names).  In order to obtain forged credit cards bearing the users' names, some advance planning must be required.  Based on their admissions, I have reasons to believe that D1 and D2 were manipulated by a counterfeit credit card syndicate.  "Ah Lung" and the moneylender could not have orchestrated the "operation" just by themselves.

14.According to the relevant authorities on sentencing[1], credit card offences are serious and must be deterred.  Even a small scale credit card fraud with small losses by an offender who is not alleged to be part of a larger syndicate can attract a starting point of 3 years' imprisonment.  In HKSAR v CHEN Wing Hong CACC 40/2005, the Court of Appeal observed that "… in this day and age the integrity of the credit card system is highly important and those who attempt to beat the system by fraudulent methods necessarily erode the confidence which people are entitled to place on this aspect of modern commercial life[2]."

15.When people realize that the court would not treat "foot soldiers" of counterfeit credit card syndicates lightly, there would be, hopefully, fewer willing "shoppers"; thus making it difficult for those syndicates to exploit people like the defendants in the present case.  D1 and D2 may have their own "excuses" for committing the offence; however, the court has, time after time, expressed in very clear terms that having a sick family member or being in financial difficulty (no matter how serious) is no mitigating factor for coming to Hong Kong to commit a crime.

16.When determining the proper starting point for the present charge, I have borne in mind the sentencing principles laid down in The Queen v CHAN Sui-to [1996] 2 HKCLR 128.  In the present case, I find the following features exist :

(i) some degree of advance planning was required (for example, making the forged credit cards bearing the defendants' names; arranging for their trips to Hong Kong and controlling their purchasing activities);

(ii) a cross-border element is involved[3];

(iii) the defendants were given clear instructions as to where to go and what to buy using those 18 and more forged credit cards in Hong Kong and Macau; and

(iv) the defendants made admissions upon arrest and pleaded guilty in a timely manner.

17.Based on the information before me, the aggregate value of the successful purchases made by D1 and D2 is relatively insignificant[4]. On the other hand, they attempted to purchase goods (albeit unsuccessful) in a total sum of approximately $410,000 and $94,000 respectively.  D1 shopped with forged credit cards for about 10 days; whereas D2 did so for only 2 days.  In my view, this case is to the least extent a medium-sized operation.  If D1 and D2 were not stopped by the Police, they could have continued to make further purchases, thereby causing more losses to various retail stores, a fact which I cannot overlook.

18.For the reasons stated above, I adopt a starting point of 4 years' imprisonment for D1; and 3.5 years for D2.  With their timely guilty pleas, their sentences are reduced to 32 months and 28 months respectively.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence them to 32 months' and 28 months' imprisonment respectively.