HKSAR v. Mohd Syafiq Bin Mansor and Another

DCCC374/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 374 OF 2010

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Reasons for Sentence

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1.The 1st defendant has pleaded guilty to the first five charges of using a false instrument, the 7th to 11th charges of using a false instrument jointly with the 2nd defendant, the 12th charge of attempting to use a false instrument and the 13th charge of possession of a false instrument, namely, 16 cards, credit cards.

2.The 2nd defendant has pleaded guilty to the 6th charge which is a charge of using a false instrument and also pleaded guilty to the 7th to 11th charges which he is charged jointly with the 1st defendant of using a false instrument. He has also pleaded guilty to the 12th charge which he is charged jointly with the 1st defendant of attempting to use a false instrument and the 14th charge to possession of a false instrument, namely 14 credit cards.

3.The prosecution’s Summary of Facts which was admitted reveal that both defendants are Malaysian citizens and were arrested at the Hong Kong International Airport on 3 February this year after having used various credit cards in some shops. At their arrest they were found in possession of the credit cards, the subject matter of Charges 13 and 14.

4.Immigration records show that they had entered Macau on 1 February this year and arrived in Hong Kong on 2 February this year. And when arrested they were found to have E-tickets, airline tickets, which show that they were to depart Hong Kong at 2.30 pm on 3 February this year. After their arrest, the cards, credit cards in their possession were examined by the forensic scientist and were found to be forged. Upon their person were found sales receipts testifying to a total of 12 transactions which were conducted by means of counterfeit credit cards.

5.Charge 1 reveals that the 1st defendant had used a Master card for payment in KFC in the sum of $59.60. The 2nd charge, the 1st defendant used the card in Sa Sa Cosmetic Company on 2 February for the sum of HK$2,040.50, and this card was found in the defendant’s possession at the time of arrest. Charge 3, the 1st defendant had used the card to buy $2,911.60 worth of garments and these items were found upon arrest.

6.Charge 4, the 1st defendant had used the forged card to buy garment to a total value of $1,248, and the card and the items were found upon his arrest. Charge 5, on the same day, the 1st defendant had used the forged card to buy cosmetics in another branch of Sa Sa Cosmetic to the total value of HK$2,589. These items were recovered, but what was of interest was that the saleslady at this company confirmed that when the purchase was made, one of the persons at the shop handed to her a mobile phone and a woman speaking in Putonghua spoke to this saleslady about the products. So what is of interest is therefore there was another person involved.

7.Charge 6 in which the 2nd defendant walked into Mannings on 3 February together with the 1st defendant, and the 2nd defendant bought 4 boxes of chocolate for HK$263, using a UOB credit card. The 7th charge shows that the two defendants went to the Armani Exchange Shop and bought garments to a total value of $7,182. It was the 2nd defendant who paid with the forged card and 6 out of the 9 purchased items were recovered from the 1st defendant.

8.On the 8th charge, the two defendants had gone to the Dynasty Arts & Craft and purchased a travelling bag to the value of HK$600. According to the transaction record, a credit card in the name of the 1st defendant was uttered. The 1st defendant was found upon his arrest in possession of this card and the travelling bag was recovered from the 2nd defendant.

9.The 9th charge, a joint charge, was that the two defendants went to the Sheraton Hotel on 2 February and asked for a room. The 1st defendant used a credit card to pay for the deposit of $2,300 as security. And then when they checked out on 3 February, the 1st defendant used a credit card to settle the hotel costs, and the total charge on the card was for HK$6,061.90. The 1st defendant was found in possession of the card upon arrest, and CCTV camera captured the images of the 1st and 2nd defendants in the hotel which showed that they were acting jointly.

10.On the 10th charge of the joint charge, both defendants went into the shop, the Victorinox Hong Kong Shop, on 3 February where they purchased items amounting to $3,501. Both defendants were identified by the salesman in an identification parade. The 1st defendant was found in possession of the card upon arrest.

11.And Charge 11, both defendants went to the shop on 3 February and bought 14 pieces of garment from Calvin Klein Jeans to a total value of $6,383. According to the transaction record, the 2nd defendant paid with the forged credit card. The 2nd defendant was found in possession of this credit card and all except one of the purchased items were recovered from the 1st defendant. The remaining one item was recovered from the 2nd defendant upon arrest. The saleslady positively identified the 2nd defendant as being the one who uttered the credit card, and CCTV images captured the 1st defendant selecting the purchased items whilst the 2nd defendant made payment.

12.Finally, in Charge 12, which was on the day of arrest, the 1st and 2nd defendants were spotted acting suspiciously outside the Levis Shop at Terminal 2 of the Hong Kong Airport by two plain-clothed police officers. They went into the Levis Shop and wanted to buy items to the total value of $4,695. They presented a UOB credit card to the saleslady but approval was denied. They left without buying these items. They were then arrested.

13.Both defendants have clear records in Hong Kong and I am informed by Mr Delaney that he has been instructed by both defendants that they have clear records in Malaysia, but whatever may be the case, they have clear records in Hong Kong.

14.The 1st defendant is aged 26 and the 2nd defendant is aged 35. I am informed that the 1st defendant is single and the 2nd defendant is married with a 3-year-old son. The 1st defendant worked as a security officer in Malaysia and his motivation for committing the crime, the offences in this case, is because he wanted to make money in order to get married. The 2nd defendant’s motivation was because he had financial problems.

15.It is clear that from the cases which have been submitted by both counsel that the courts in Hong Kong view this kind of offences with grave severity. The seminal case of R v Chan Sui To and another [1996] is a leading case for offences of this kind. The Court of Appeal in that case had identified various factors which a sentencing judge should consider in the case of credit card fraud.

16.These factors are not exhaustive and the court there identified that the sentencing judge should consider the size of the operation, for example, whether it involved a large sum of money, whether it concerned a large number of persons or a large number of forged credit cards. Secondly, the planning that had gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used and to what extent. Thirdly, whether there is an international dimension. Fourthly, whether the accused played a major role, for example, running a syndicate engaging in actual manufacture, organizing the use of forged cards, or whether he is a mere cog in the wheel as a courier or a custodian or keeper. Fifthly, whether there is a plea of guilty.

17.And in 1996 the court said that when considering whether the large sums of money were involved, they suggested as a guideline, with the cost of living in 1996, amounts up to $50,000 may be considered relatively small; amounts from $50,000 to $150,000 would consider to be medium.

18.Now, the court in that case also made mention of the fact that the sum of money involved, although it is one of the factors to be taken into account, it is not the most significant factor. Now the cases in the Court of Appeal had brought the various factors into greater relief because in the case of HKSAR v Johnny Cheung Ka Wo [2002] 2 HKC 517 the Court of Appeal held that the amount proved to have been lost by the fraudulent use of credit cards was not an important factor to be taken into account in sentencing for this kind of offences. It was the potential for losses which was the most important consideration, and per curium the court had noted that severe sentences are called for as a deterrent to others who may be tempted to beat the integrity of the credit card system by fraudulent methods.

19.In that case the offences related to the fraudulent use of two counterfeit credit cards and the Court of Appeal in that case had dismissed the appeal against sentence with an overall starting point of 3 years’ imprisonment on the ground that it is not manifestly excessive.

20.In the case of HKSAR v Cheng Wing Hong [2005] HKCU 724, the Court of Appeal there was dealing with an appellant who had pleaded guilty to five charges of obtaining property by deception and one charge of possession of a false instrument. And the appellant was sentenced to a total term of 42 months’ imprisonment. The five deception charges were relating to forged credit cards being used to make purchases at five different shops. And the possession charges related to two forged credit cards. The applicant had worked in conjunction with an accomplice. The applicant in that case has a criminal record on 10 previous occasions although nothing similar. The court in that case dismissed the appeal.

21.In that case the court also referred to the case of Johnny Cheung Ka Wo and stressed that severe sentences on those who engaged in such crimes should be imposed as a deterrent to others and again stressed that it is the potential for future losses that should be considered.

22.In the case of HKSAR v Bin Kei Chi and another CACC181/05, this was a case submitted by Mr Delaney, the Court of Appeal there was dealing with two appellants who had pleaded guilty to possessing false instruments and possession of a false travel document. And at the arrest of the defendants, inside the 1st defendant’s suitcase were found 10 Master cards, 3 of which were Gold cards and 15 Visa cards of which 7 were Gold cards, and these were counterfeit cards. Both defendants were found to be jointly in possession of the suitcase containing the 25 counterfeit credit cards. The judge there took a starting point of 6 years and the court there also reviewed the cases starting from Chan Sui To. The Court of Appeal then considered that the applicants there were working as a two-men team and there was an abundance of material to suggest an inference that this was not a small operation.

23.The Court of Appeal there had referred to Litton J’s judgement, sitting as a Justice of Appeal in the case of R v Kwan Ying Ho, Cr App No. 527/1992, where he said at page 5 that:

“Credit card frauds have in recent years been an insidious poison in the community.  It affects a large number of citizens; it erodes the credit card system and damages Hong Kong’s standing in the international community.”

24.And, I, perhaps, should add in this case that it not only damages the community of Hong Kong, it damages the international community. This kind of offences has now got an international dimension. It is because of the ease of travel, many syndicates are now manufacturing cards with details illegally obtained in one country and using them in another country to avoid detection. And so the courts in sentencing have to consider this.

25.In the case of HKSAR v Cheng Sui Yin [2006] HKCU 939, the Court of Appeal was dealing with a defendant who was found to be carrying 14 counterfeit Visa and Master cards when she was stopped at the arrival hall at the Lowu Border Control. And the Court of Appeal there dismissed an appeal against sentence where the trial judge had considered 3 years’ starting point to be appropriate.

26.In the case submitted by Ms Yang, the case of HKSAR v Tu I Lang, CACC464/2006, the appellant there had pleaded guilty to one charge of using a forged credit card and one charge of possessing two forged credit cards. The trial judge adopted a starting point of 4 years’ imprisonment and the Court of Appeal there considered that the fact in that case pointed to a small unsophisticated operation, only involving one or a few forged cards, uncomplicated by other evidence materially linking the defendant to a larger operation, so they considered a starting point of 3 years’ imprisonment to be appropriate.

27.And in the case of HKSAR v Hau Ka Kit, again submitted by Ms Yang, which was in 2006, CACC390/2005, the court considered that the aggravating feature in that case is that the applicant had used a forged credit card on five occasions within a short period of 1½ months, and the court considered that a 4-year imprisonment overall adopted by the judge was appropriate in that case.

28.Now, the reason I refer to that is that the Court of Appeal considered it to be an aggravating feature that forged credit cards were used on five occasions within the short period of 1½ months. In this case the forged credit cards were used on such numerous occasions all within a period of two days, so all the more the aggravating feature is present in this case.

29.So having considered the aggravating feature in this case, apart from the fact that it was used over a short period of two days in Hong Kong on so many occasions and that the defendants had come from Malaysia only a day before via Macau and, although, the value of the goods cannot be said to be substantial, still there is a serious potential for loss because of the large number of forged cards found in their possessions.

30.As I have said, this type of offences has become very prevalent. It is an international crime and it has to be met with severe deterrence. And apart from looking at this, I also have to look at the overall criminality of each defendant.

31.So in relation to the 1st defendant, having considered his background, the number of counts he faces, I consider that an appropriate starting point would be 6 years in his case. And so I proceed to impose a sentence of, after giving him credit for his remorse, impose a sentence of 4 years on each count that he faces. So with 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12 and 13, he will go to prison on each of those counts for 4 years’ imprisonment, and they will be served concurrently.

32.In relation to the 2nd defendant, I consider that an appropriate starting point would be one of 5 years on each count, to be reduced to 40 months, because of his plea which makes it 3 years 4 months. So for Charges 6, 7, 8, 9, 10, 11, 12, 14, he is sentenced to 3 years and 4 months on each charge, to be served concurrently.

Please refer to CACC188/2010 for the relevant appeal(s) to the Court of Appeal.