HKSAR v. Gooi Nel Shen

DCCC1079/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1079 OF 2009

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Reasons for Sentence

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1. Defendant, you have pleaded guilty to four charges before this court.  The first two charges refer to using a false instrument, contrary to section 73 of the Crimes Ordinance, that is of using a forged credit card in order to purchase goods.  The 3rd charge relates to possessing false instruments, contrary to section 75(1) of the Crimes Ordinance, and that charge refers to having in your possession seven forged credit cards.  The 4th charge is a charge of possession of a forged ID card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap. 177. 

2. All these offences were committed on 29 August 2009 at the Duty Free Shopping Hong Kong Limited at No. 77, Mody Road, Tsim Sha Tsui, Kowloon, Hong Kong.  At around 4.15 pm on 29 August 2009, you approached the Gucci counter at the Duty Free Shop to purchase a watch valued at HK$9,440.  You presented a forged Bank of Montreal Mastercard in the name of Chan Ka Lok for payment.  The sales lady swiped the card and the machine indicated that the card should be forfeited.  The sales lady then returned that forged credit card to you and told you that the card had some problems.  She asked you to use another credit card.  You then presented an ABN AMRO Bank Visa Card for payment.  She swiped that card and that transaction was completed.  You then presented that card for purchasing another item, a shoulder bag valued at HK$11,490 and when the sales lady presented that credit card at another credit card machine, that machine indicated that the payment could be settled by Hong Kong dollars or Japanese currency and she suspected that that card was forged.  She then contacted the credit card company and the company confirmed that that card was forged.  When she returned to the counter, you asked her to return that credit card to you.  However, you were brought to the security office by a security guard of the Duty Free Shop pending the arrival of the police.

3. A police officer arrived, searched you and found inside your back pocket a wallet containing seven other forged credit cards and a forged Hong Kong Identity Card.  They were all in the name of a Chan Ka Lok.  The name that appeared on the forged credit cards and the identity card were different from the name on the Malaysian passport found on you. 

4. You were arrested and cautioned and under caution you admitted that the Malaysian passport found on you was genuine, all the credit cards and identity cards were forged and were given to you by a male called Ah Tak.  You had met Ah Tak in mainland China and he offered you the job in Hong Kong.  Ah Tak gave you the forged ID card and credit cards to make purchases at shops which sold brand name products in Hong Kong and after purchase you would be given 10 per cent of the total value of what you had purchased as a reward.  Ah Tak had in fact taken you to the Duty Free Shop that day and asked you to go to the Gucci counter to make purchases.  After the forged credit cards and ID card was examined by the forensic scientist of the Government Laboratory, he did find that they were all forged.

5. Mr Kwong, your solicitor, today has mitigated on your behalf.  I have taken into account all that he has had to say.  You are 29 years of age and of clear record.  You are from Malaysia and this is your first time to come to Hong Kong.  I am informed that before you came to Hong Kong you worked as a salesman in Penang earning approximately US$1,000 a month.  In Penang you met somebody who could introduce you to a job in China, so believing that to be the case you went to China and met this person Ah Tak and instead of giving you a job, he then gave you all the credit cards and the forged ID card to come and commit these offences in Hong Kong.  Your journey to Hong Kong was free of charge and you committed this offence, Mr Kwong says, out of sheer foolishness.

6. The prosecutor, Miss Cheung, and Mr Kwong have both referred me to the case of Chan Sui To & Another, that is Cr App No. 115 of 1996 and also the case of HKSAR v Tu I Lang, CACC464 of 2006.  These cases refer to forged credit card offences as well as cases involving the possession of forged credit cards.  In Chan Sui To, the factors to be taken into account when sentencing for forged credit cards are:- the size of the operation, that is whether it involved large sums of money or whether it concerned a large number of people or forged credit cards; the planning that had gone into perpetrating the fraud, whether it is elaborate or simple or that technical skills were used and to what extent; whether there was an international dimension; whether the accused played a major role either running a syndicate, engaging in actual manufacture, organising the use of forged credit cards or whether he was a mere cog in the wheel as a courier or custodian or a keeper, and whether there was a plea of guilty.

7. For small credit card offences involving two forged credit cards in Tu I Lang, the court considered that a starting point of 3 years’ imprisonment or less would be appropriate for small unsophisticated operations involving only one or a few forged cards uncomplicated by other evidence materially linking the defendant to a larger operation. 

8. In this case, not very large sums of money were involved.  In the first charge some $9,000-odd and the 2nd charge some $11,000-odd amounting to $20,000-odd.  However, importantly in the 3rd charge there were a large number, in my view, of forged credit cards.  Apart from the two credit cards you had attempted to use there were seven others making a total of nine credit cards.  There was an international dimension, you had used cards coming from all over the world but what had happened is that you went to China and were given these forged credit cards and a forged ID card to deliberately enter Hong Kong to commit these offences.  Your reward was to be 10 per cent of the total value of what you had fraudulently purchased.  This, I have to say, was not elaborate planning but more than simple in that you were set up with all these cards and an ID card to come to Hong Kong to commit these offences.

9. Applying all those factors to this case, I consider the following sentences are appropriate:-

On the 1st charge, a starting point of 3 years’ imprisonment, giving you the full one-third discount reducing that term to 2 years’ imprisonment.  The same for the 2nd charge.

10. As for the 3rd charge, that is the charge of possessing false instruments of which there were seven credit cards, I consider a starting point of 4 years’ imprisonment to be appropriate and given the potential for further losses in respect of those cards and following the case of HKSAR v Yau Hoi Shan Shanly CACC209 of 2006, you had these further and other forged credit cards at your disposal to use and it is the potential for losses of these by the fraudulent credit cards which I take into consideration.  Giving you full credit for your plea of guilty and reducing that 4 year term by one-third, I reduce that term to 2 years and 8 months’ imprisonment.

11. On charge 4, I take a starting point of 15 months’ imprisonment.  Giving you full credit for your plea of guilty, I reduce that term to one of 10 months’ imprisonment.

12. In sentencing you, I take into account the principle of totality and as the 4th charge is separate and distinct from the first three charges, I order that 3 months of charge 4 to run consecutively to charges 1 to 3.  That means your total term of imprisonment is 2 years 11 months’ imprisonment.  All other terms shall run concurrent to each other.