HKSAR v. Ong Chin Ou

DCCC1248/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1248 OF 2011

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Reasons for Sentence

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1.The defendant enters a plea of guilty to four charges of ‘Using a false instrument’, laid against him under section 73 of the Crimes Ordinance, Cap. 200, and one charge of ‘Possessing false instruments’, preferred under section 75(1) of the same Ordinance.

Facts

2.The facts to which the defendant agrees are as follow.

3.On the afternoon of 11 September 2011, the defendant presented an OCBC Bank Master Card issued in the name of S K Loh to a staff member of Baleno Kingdom Limited at Yuen Long, and purchased a T-shirt and two pairs of shorts (Charge 1).

4.He then went to G2000 at Tuen Mun Town Plaza and used an UOB Master Card issued in the same name and bought two shirts and one pair of trousers (Charge 2).

5.Then, at Studio A located in the same plaza, he used the OCBC card and bought an Apple iPad2 with a smart cover (Charge 3).  After making that purchase, he used the same card and bought an Apple iPod Touch, together with a touch cover (Charge 4).

6.The cashier who processed the transactions became suspicious of the card the defendant used, and asked him to provide his proof of identity.  The defendant fled, but was caught by a police officer outside Studio A.

7.Under caution, the defendant admitted the OCBC card was a counterfeit credit card and that he had altogether five such false cards with him.  The police officer seized the five cards from the defendant, which were subsequently confirmed to be counterfeit credit cards (Charge 5).

8.During a video recorded interview, the defendant said he came from Malaysia and got acquainted with a person called ‘Ah Hang’ in Shenzhen, who accused the defendant of owing him a debt and forced the defendant to use the counterfeit credit cards to make purchases of high-tech products for repayment. 

Conviction

9.The court finds the defendant guilty as charged.  The defendant has had a clear record prior to his current conviction.

Mitigation

10.In mitigation, the defence puts forward the following matters for the court’s consideration.   

11.The defendant is now 24 years old.  He has received secondary education in Malaysia, where he used to work as a skilled labourer. 

12.He lives with his father and his siblings, his mother having died a year ago. 

13.He committed the present offences for financial gains as he has been unemployed for some time. 

14.Counsel stresses that the defendant is relatively young and has had a clear record before his current conviction.  The court is urged to take into account the defendant’s expression of remorse in pleading guilty to the charges. 

15.Counsel submits further that the offences of which the defendant stands convicted are not the most serious of their kind, and that there is no obvious international element in the offences. 

16.Finally, a letter of the defendant is placed before the court in which the defendant reaffirms his remorse and promises to exert serious effort to find gainful employment in the future.  The defendant asks the court for a lenient sentence. 

Discussion

17.The offences of which the defendant stands convicted are serious.  Deterrent sentences are called for, as these offences are ‘a running scourge’ (see HKSAR v Leung Pui-shan CACC317/2007).

18.The value of the goods obtained by the use of counterfeit credit cards is of course a relevant consideration, but the court must always bear in mind the potential loss but  for the defendant’s arrest (see HKSAR v Ng Swee-thiam and others [2000] 1 HKLRD 772 and HKSAR v Watt Siu-hung CACC93/2001 (unreported)). 

19.For a low-scale credit card fraud case, without any international element, a starting point of three years’ imprisonment would be appropriate (see Watt Siu-hung’s case, and HKSAR v Tu I Lang CACC464/2006 (unreported)). 

20.There is a clear international dimension in the instant case.  The defendant acted on the instructions of the mastermind in Shenzhen.  Hong Kong is famous for her tourism industry and welcomes visitors from all over the world.  The court has the duty to protect Hong Kong from criminals who come here in the guise of tourists but with a premeditated intention to commit crimes.  An extra six months’ imprisonment should be imposed to reflect the international element of the offences. 

21.The overall starting point should be one of three years and six months’ imprisonment. 

22.Apart from his clear record and guilty pleas, none of the other suggested mitigating factors carry much weight.  Nothing in the defendant’s personal and family circumstances would justify a further reduction in sentence.   

23.In all the circumstances, the court would adopt a starting point of 18 months each for Charges 1 to 4, which is reduced by one-third on account of the defendant’s clear record and guilty pleas to one of 12 months’ imprisonment each.  A starting point of two years would be appropriate for Charge 5, which is likewise reduced by one-third to one of 16 months’ imprisonment. 

24.Having considered the totality principle, the court orders that sentences for Charges 1 and 2 should run concurrently, and that the sentences for Charges 3 and 4 should also run concurrently.  Six months of the sentence for Charges 3 and 4 should however run consecutively to the 12 months’ sentence for Charges 1 and 2, making a total sentence of 18 months for the four charges.  Finally, the court orders that ten months of the sentence for Charge 5 should run consecutively to the 18 months’ imprisonment for Charges 1 to 4, resulting in a final sentence of 28 months’ imprisonment. 

Order

25.For the five charges of which he stands convicted, the defendant is sentenced to a term of imprisonment of 28 months.