HKSAR v. Chan Chun Mon and Others

DCCC851/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 851 OF 2010

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Reasons for Sentence

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1.D1 pleaded guilty to 1 charge of "Using a false instrument" (Charge 3). D2 pleaded guilty to 2 charges of "Using a false instrument" (Charges 2 and 6) and 1 charge of "Possessing false instruments" (Charge 8). D3 pleaded guilty to 3 charges of "Using a false instrument" (Charges 4, 5 and 7) and 1 charge of "Possessing false instruments" (Charge 9). D2 and D3 also pleaded guilty to a joint charge of "Using a false instrument" (Charge 1).

Summary of Facts

2.D1 to D3 arrived at Hong Kong from Kuala Lumpur in the evening on 14 May 2010. They were scheduled to return to Kuala Lumpur at 10:55 am on 15 May 2010.

Charge 1 (against D2 and D3)

3.About 8:10 pm on 14 May 2010, D2 and D3 visited the Essential Express shop located at Level 5, Terminal 1 of the Hong Kong International Airport.  They tried to purchase 1 pair of sunglasses (E45), 1 mobile phone (E46) and 1 hand-free device (E55), the total value of which was $6,309.  D3 presented 2 credit cards for payment but both were declined.  Upon presenting the 3^rd credit card (E17; the forged credit card particularized in Charge 1) by D3, payment was accepted.

Charge 2 (against D2)

4.At 6:00 am on 15 May 2010, D2 checked out of the Regal Airport Hotel.  The amount of his bill was $5,691.30.  He presented the forged credit card particularized in Charge 2 (E1) for payment.  It was accepted.

Charge 3 (against D1)

5.About 9:35 am on 15 May 2010, D1 visited the Cartier shop located at Level 6, Terminal 1 of the Hong Kong International Airport ("Cartier"). He tried to purchase a watch (E32), the value of which was $58,000.  He presented 2 credit cards for payment but both were declined.  Finally, he presented the forged credit card particularized in Charge 3 for payment.  It was accepted.

Charges 4 and 5 (against D3)

6.About 9:40 am on 15 May 2010, D3 visited the G2000 shop located at Level 5, Terminal 2 of the Hong Kong International Airport.  He presented the forged credit card particularized in Charge 4 (E20) to purchase 5 shirts (E49 to E53) and 1 tie (E54), the total value of which was $732.  It was accepted.

7.About 9:50 am on 15 May 2010, D3 visited the Levi's shop located at Level 5, Terminal 2 of the Hong Kong International Airport.  He presented the forged credit card particularized in Charge 5 (E20) to purchase 2 pairs of jeans (E47 to E48), the total value of which was $1,698.  It was accepted.

Charges 6 and 7 (against D2 and D3 respectively)

8.About 10:05 am on 15 May 2010, D2 visited Cartier.  He tried to purchase 3 watches, the total value of which was $334,900.  He presented 6 credit cards (3 of which were the forged credit cards particularized in Charge 6; E1 to E3) for payment but all were declined.  The salesperson reported the matter to the Police and informed D2 that there were problems with his credit cards.  D2 then left without making any purchase.

9.D3 appeared at Cartier at the same time.  He tried to purchase a watch, the value of which was $47,000 by presenting a "Chase" credit card. Another salesperson told him that she had to obtain the authorization code from the credit card centre.  D3 refused claiming that he was in a hurry.  The card was returned to him and he left the shop.

Charges 8 and 9 (against D2 and D3 respectively)

10.Police officers soon arrived at Cartier and found D2 in the vicinity.  They followed him and saw him joining D1 and D3.  When D1 to D3 were about to board their flight, they were intercepted for enquiry.

11.Upon search, E32 (a Cartier watch) was found in D1's luggage.  E45 to E55 (the items purchased in Charges 1, 4 and 5) were recovered from D3's luggage. The 16 credit cards particularized in Charge 8 (E1 to E16) were found in D2's wallet. The 15 credit cards particularized in Charge 9 (E17 to E31) were also found in D3's luggage.

12.A Government Chemist confirmed that E1 to E31 are all forged credit cards.

13.Under caution, D1 admitted that he used a forged credit card at Cartier.  He claimed that he was given 5 forged credit cards by a forged credit card syndicate to make purchases in Hong Kong.  He could get 7% of the re-sale value of the goods purchased.  After using a forged credit card at Cartier, all the forged credit cards were collected by an unknown person at the Hong Kong airport.

14.D2 admitted under caution that he used a forged credit card at the Regal Airport Hotel.  He also used forged credit cards to purchase 3 watches at Cartier, but was unsuccessful.  He could get 5% of the re-sale value of the goods purchased.  He committed the offences because he owed a lot of money.

15.D3 admitted under caution that the forged credit cards were given to him by his friend.  He would return the cards to the forged credit card syndicate in Malaysia.  He could get 10% of the re-sale value of the goods purchased.

Mitigation & Sentence

16.D1 to D3 are Malaysian Passport holders.  They all have a clear record in Hong Kong.

17.D1 is 23.  His wife is expecting in October this year; she now resides in Thailand being looked after by her parents.  Prior to his arrest, he worked as a motorcar salesman earning MYR2,800 per month.  Mr. LI submitted that D1 had only made 1 purchase and the card used by him was not found; he was not identified in any ID Parade either.  The only evidence against D1 came from his own admissions.

18.D2 is now 29.  He is separated.  Prior to his arrest, he worked as a clerk in an insurance company earning equivalent to HK$8,000 per month.  Mr. TANG submitted that D2 is in heavy debt because he acted as a guarantor of a debt equivalent to HK$44,000 for a friend, who had run away.  D2 was all along in stable employment and also studied hard to advance himself.  Mr. TANG informed me that D2 has only 6 subjects left to complete his Engineering degree at the Malaysia Open University.

19.D3 is 24.  He is married with a 5-year-old daughter.  He left school after completing Secondary 2 due to serious sickness of his parents (father is diabetic and mother, cancer).  Ms. CHONG submitted that D3 had borrowed MYR2,000 from a friend.  He kept pressing D3 for repayment.  Finally, this friend arranged for D3 to come to Hong Kong to shop with forged credit cards.  Ms. CHONG stressed that D3 is obviously inexperienced because he bought clothes which have no re-sale value.

20.I note that all the credit cards used and seized are in the defendants' names. In order to obtain forged credit cards bearing the user's name, some advance planning must be required.  Based on their admissions, the defendants were clearly manipulated by a counterfeit credit card syndicate.  I note that each defendant may have his own "excuse(s)" for committing the respective offence(s).  However, the court has, time after time, expressed in very clear terms that having a sick family member or being in financial difficulty is no mitigating factor for committing a crime.

21.According to the relevant sentencing authorities cited in Sentencing in Hong Kong (5^th edition), 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 3 years imprisonment on a guilty plea.  A clear message must be conveyed to the general public that "credit card fraud" is a serious crime and that offenders would be punished by a substantial prison term.

22.When determining the proper starting point for each 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)   3 persons and at least 31 forged credit cards were involved; goods and services in a total value of about $450,000 were deceived or attempted;

(ii)   some degree of advance planning was required (though probably not by the defendants), such as making the forged credit card, arranging the defendants to come to Hong Kong;

(iii)   a clear international element was involved;

(iv)   the defendants were instructed to shop with the forged credit cards in Hong Kong and then take the goods home to the syndicate;

(v)   the defendants made admissions upon arrest and pleaded guilty to the respective charges; and

(vi)   all the tangible goods (save the hotel services in relation to Charge 2) were recovered.

23.For D1, he had only purchased a watch which is worth $58,000.  No forged credit cards were found in his possession.  For Charge 3, I adopt a starting point of 3 years imprisonment.  One-third discount is given for his guilty plea, reducing the sentence to 2 years.  Apart from his guilty plea, I see no other mitigating factors which warrant any further discount.  The sentence for D1 in respect of Charge 3 is 2 years imprisonment.

24.For D2, he purchased and attempted to purchase goods and services in a total sum of about $340,000.  He was also in possession of 16 forged credit cards.  I consider 4.5 years imprisonment to be the appropriate global starting point. Hence, for Charges 1, 2, 6 and 8, I adopt a starting point of 4.5 years each.  One-third discount is given for his guilty pleas, reducing the sentence for each charge to 3 years.  Apart from his guilty pleas, I see no other mitigating factors which warrant any further discount.  After considering the totality principle, I order the sentences for all 4 charges to run concurrently.  In other words, the total prison term for D2 in respect of Charges 1, 2, 6 and 8 is 3 years.

25.For D3, he purchased and attempted to purchase goods in a total sum of about $55,000.  He was also in possession of 15 forged credit cards.  I consider 4 years imprisonment to be the appropriate global starting point.  Hence, for Charges 1, 4, 5, 7 and 9, I adopt a starting point of 4 years each.  One-third discount is given for his guilty pleas, reducing the sentence for each charge to 32 months.  Apart from his guilty pleas, I see no other mitigating factors which warrant any further discount.  After considering the totality principle, I order the sentences for all 5 charges to run concurrently.  In other words, the total prison term for D3 in respect of Charges 1, 4, 5, 7 and 9 is 2 years and 8 months.