HKSAR v. Lim Poh Soon

DCCC2/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 2 OF 2012

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Reasons for Sentence

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1.The defendant enters a plea of guilty to one charge 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 follows.

3.The defendant, a Malaysian passport holder, entered Hong Kong via Lo Wu Immigration Control Point on 11 November 2011.

4.That very same day he presented to a staff member of Chanel at SOGO, Causeway Bay, a false CapitalOne MasterCard in his own name to settle payment for six bottles of perfume valued at $5,660 (Charge 1).

5.The cashier processed the transaction without success.  Suspecting that the card was a false one, she notified the staff member of Chanel, who alerted the security.

6.The defendant fled without taking back the CapitalOne MasterCard.  He was intercepted by a police officer outside SOGO.  Later the officer arrested the defendant inside the security room of SOGO.

7.The police found in the defendant’s possession two false VISA cards and one false MasterCard, all issued in the defendant’s name (Charge 2).

8.Under caution, the defendant admitted taking the four cards into Hong Kong from Malaysia and that his friend had told him it would be convenient to make purchases using those cards.

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 claims criminal responsibility and pleads guilty to the two charges to show remorse.  A person of hitherto clear record, he is now 40 years old, married with six children aged between four and 13.

12.In Malaysia, the defendant and his wife are both gainfully employed, but the combined income of the couple does not appear to be sufficient to cover the living expenses of the family, including those of the defendant’s mother who is immobile due to a stroke.

13.Five of the defendant’s offspring are entrusted to the care of his mother-in-law, to whom the defendant has to make contribution, taking up a substantial portion of his and his wife’s income.

14.Counsel submits that the defendant has committed the present offences out of momentary greed and asks the court to exercise clemency on him in passing as lenient a sentence on him as possible.

Discussion

15.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 CACC 317/2007).

16.The value of the goods obtained by the use of the counterfeit credit card is of course a relevant consideration; however, the court must always bear in mind the potential loss but for the defendant’s arrest (see HKSAR vNg Swee Thiam & others [2000] 1 HKLRD 772, and HKSAR v Watt Siu Hung CACC 93/2001 (unreported)).

17.For a low-scale credit card fraud, 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 CACC 464/2006 (unreported)).

18.There is a clear international dimension in the instant case.  The defendant has brought the false cards into Hong Kong from overseas.  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-month imprisonment should be imposed to reflect the international element of the offences.

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

20.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.  Every population, Hong Kong and Malaysia included, would have its share of unfortunate members; this is but a fact of life.  Financial hardship counts little towards mitigation.

21.In all the circumstances, the court would adopt a starting point of 18 months for Charge 1, which is reduced by one-third on account of the defendant’s clear record and guilty pleas to one of 12 months’ imprisonment.  A starting point of 30 months would be appropriate for Charge 2, which is likewise reduced by one-third to one of 20 months’ imprisonment.

22.Having considered the totality principle, the court orders that eight months of the sentence for Charge 1 should run consecutively to the 20 months’ sentence for Charge 2, making a final sentence of 28 months’ imprisonment for the two offences.

Order

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