HKSAR v. Pang Ka Yin and Another

DCCC281/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 281 OF 2011

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Reasons for Sentence

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1.The 1st defendant was convicted on his guilty plea, and the 2nd defendant was found guilty after trial, of one joint charge of possession of equipment for making a false instrument, preferred against them under section 76(1) of the Crimes Ordinance, Cap. 200.

Facts

2.The facts of the case are as follows.  At the instigation of a friend Ah Sun in Shenzhen, the 2nd defendant recruited the 1st defendant to bring forged credit cards across the border to Hong Kong.  The 1st defendant was introduced to Ah Sun on 5th January 2011.  On 6th January 2011, the 2nd defendant liaised with Ah Sun and took the 1st defendant to see him in Shenzhen.  Ah Sun gave the 1st defendant a bag containing a 124 credit cards, unfinished and inoperative in that incomplete state of manufacture, to take to Hong Kong.  The 2nd defendant accompanied the 1st defendant on his return journey, but as soon as they arrived in Hong Kong, the 1st defendant was intercepted by Customs Officers and was found to be in possession of the bag of credit cards.  The 1st defendant was arrested, but the 2nd defendant disappeared.  Under caution, the 1st defendant provided the police with details of the 2nd defendant’s involvement.  For his part, the 1st defendant would, he said, obtain a $150 as a reward. 

3.Knowing that the police were looking for him, the 2nd defendant changed his mobile phone number, slept in the street, and stayed in guesthouses, until his arrest by the police two weeks later.  Under caution, the 2nd defendant admitted knowing it wrong to bring the credit cards into Hong Kong as Ah Sun would not do so himself and would pay someone to do so for him, but he denied breaking the law.  The 2nd defendant denied any gain arising from the incident. 

4.By entering a plea of guilty to the charge, the 1st defendant admits having, firstly, the knowledge that the credit cards constituted material specifically designed for making operative, forged credit cards, and, secondly, the intention that someone would in fact use the material to make forged credit cards for use to induce others to act to their prejudice.

5.After trial, the court finds beyond all reasonable doubt that the 2nd defendant has also had the guilty knowledge and intention referred to in the paragraph 4 above, and that his role was to ensure that the 1st defendant would cross the border with the credit cards and would remain in possession of them for onward delivery. 

6.The court finds the two defendants guilty of the charge.

7.The 1st defendant is now 18 years old, and has had a clear record prior to his current conviction.  According to the Probation Officer who compiled a Probation Order cum Community Service Order Report, which is by all standards a favourable one, the 1st defendant is the youngest of four siblings, brought up in a working class family.  His childhood has been uneventful.  Parental guidance and supervision were sufficient.  He performed well in his primary schooling.  When promoted to Form 1, the 1st defendant fell behind in his studies, and began to mingle with vice peers.  In the end, he dropped out of school without finishing Form 2.  He has no triad background, and has no history of drug abuse.  He committed the present offence for financial gain.

8.Counsel for the 1st defendant submits that the 1st defendant is relatively young and has had a clear record, and that he has demonstrated remorse by cooperating with the police, and has confirmed his full remorse by pleading guilty to the charge.  The 1st defendant has the support of his family, and he is determined to turn a new leaf. Counsel asks the court to consider a non-custodial sentence for the 1st defendant.  A couple of letters in mitigation have been submitted to the court for consideration.

9.The 2nd defendant is 19 years of age, and has had four previous records, namely, common assault, breach of probation order, and two thefts (for which he was sentenced to the Detention Centre).  It is clear from the 2nd defendant’s records that he has re-offended against the law in recent years.  After his release from the Detention Centre, he left Hong Kong for the mainland to live out the recall period, but unfortunately, he kept in touch with dubious peers, which led to the commission of the present offence.  A number of mitigation letters have been placed before the court.

10.Counsel for the 2nd defendant puts forward the following matters for the court’s consideration.  The 2nd defendant is still a young person.  He has the support of his family, friends, and employers.  He committed the offence because he did not realise its serious consequences.  He is determined to start anew, to cut off from his dubious peers, and prefers to be sent to prison for that reason. 

Discussion

11.The case of The Queen v Chan Sui-to & anor [1996] 2 HKCLR 128 is relevant to the instant case.  The Court of Appeal said:

”Allowing for the different facts and the varying degrees of culpability, it is impossible to formulate a set of principles of sentencing from those decisions. We think, however, it would be helpful to the courts if they were guided by some criterion. We would therefore suggest that an accused who plays an active but not necessarily a key role in a medium sized operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of five to six years after trial. Sentences may be adjusted upwards or downwards according to circumstances.”

12.In HKSAR v Ng Swee-thiam & Ors [2000] 1 HKLRD 772, the court commented (at page 778) that the amount proved to have been lost by the fraudulent use of the cards:

“pale(s) into insignificance when consideration is given to the potential for losses in the future.

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It is this potential for losses which is the most important consideration.”

13.There was no suggestion in the instant case that the offence involved substantial planning or equipment.  The part played by the two defendants was not an inactive part: they were to deliver the cards to be turned into forged cards for use.  The number of unfinished credit cards seized in this case was not inconsiderable.  They were introduced to Hong Kong from Shenzhen.  The potential, future loss flowing from the use of a 124 forged credit cards must be considerable, and this factor cannot be ignored.

14.The 1st defendant has had a clear record, and is the younger of the two defendants. He was recruited by the 2nd defendant, which led to the commission of this offence. He has pleaded guilty to the charge.  The court accepts that every favourable consideration should be given to his rehabilitation.  Having considered all mitigating circumstances advanced on the 1st defendant’s behalf, the court is of the view that his case should be disposed of by way of a Training Centre Order. 

15.The 2nd defendant is surely the more culpable of the pair.  He acted as the recruiting agent of a criminal friend in Shenzhen.  He has several previous records and should have known the severe consequences of further offending.  He was found guilty after trial.  Rather than fully-fledged forged cards, the cards seized in this case were inoperative in their incomplete state of manufacture.  In all the circumstances, the court is of the view that an appropriate sentence for the 2nd defendant is one of four and a half years’ imprisonment.  There is little by way of mitigation in the 2nd defendant’s case to justify a discount in sentence. 

Orders

16.The 1st defendant is sentenced to detention at the Training Centre. 

17.The 2nd defendant is sentenced to a period of imprisonment of four and a half years.

Please refer to CACC360/2011 for the relevant appeal(s) to the Court of Appeal.