HKSAR v. Gwee Bong Sing

DCCC 78/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 78OF 2012

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Reasons for Sentence

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Charges and facts

1.The defendant was a Malaysian.  He possessed 19 false credit cards (Charge 2, possessing false instruments).  He used one of the cards to pay a shop (Charge 1, using a false instrument).  He possessed a forged British passport (Charge 3, possession of a false travel document).  All happened on 17 October 2011.

2.Soon after he used the card, he was arrested by the police with a receipt of the shop and all the aforesaid items.

3.After arrest and caution, he said he had received a long-distance call whilst in Malaysia to arrange for his using forged credit cards in Hong Kong.  He agreed to do so as he owed people a debt.  Upon arrival in Hong Kong the previous evening, a male, “William”, took a photo of him in a hotel.  The photo was for making the forged passport, which would facilitate the use of the cards.  The next day he went with William and another male to a desserts shop where he paid $150 with one of the cards. 

4.The 19 cards, all in the name of “VINCENT DAY” were purportedly issued by:

(1) HSBC (x 7);

(2) Citibank (x 2);

(3) American Express (x 2);

(4) Commonwealth Bank (x 1);

(5) Diners Club (x 1);

(6) Standard Chartered (x 3);

(7) Axis Bank (x 1);

(8) ANZ Rewards (x 1);

(9) CHASE Rewards (x 1).

5.Immigration records revealed that he arrived in Hong Kong at 20:42 h on 16 October 2011 via the Hong Kong International Airport.  It is not in dispute that he came on a genuine Malaysian passport and was permitted a stay of 90 days in Hong Kong. 

Personal background and mitigation

6.He is 45 years of age, university level. He is a Malaysian resident.  He runs a hair salon.  His wife is not working. They have 4 children at school.  He owes people a debt due to business loss. 

Sentencing considerations

Credit card fraud

7.In HKSAR v Cheng Sui-to [1996] 2 HKCLR 128, Yang CJ states that a sentencing judge has to consider at least the following 5 factors before deciding the level of sentence for credit card fraud: 

(1) The size of the operation eg whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards.

(2) The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent.

(3) Whether there is an international dimension.

(4) Whether the accused played a major role, eg running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he is a mere ‘cog in the wheel’ as a courier or a custodian or keeper.

(5) Whether there is a plea of guilty.

8.In The Queen v Lai Chong-ning CACC 729/1996, the applicant and his friend applied for 42 credit cards from the banks in other people’s names.  They had used copies of other people’s identity cards.  They filled into the applications forms the addresses of post boxes which they knew were not secured by locks. The offences spanned four months and the total amount obtained was $128,100. The sentencing judge did not regard it as a syndicated operation but took a starting point of 5 years.  The Court of Appeal dismissed the appeal against sentence.

9.Mr Mui refers me to HKSAR v. Tsai Wai Tak, Eagle DCCC 303/2009.  The defendant there used a false credit card to pay for $1,530 worth of goods but it failed to obtain the authorization code.  He was arrested before he could leave.  He possessed 2 other false credit cards. Noting it as a small-scale operation, the judge took a starting point of 3 years for each charge and passed concurrent sentences.  

Forged travel documents

10.There are no sentencing guidelines.  We have to work out the range of sentences from previous cases where forged travel documents were used.    

11.Mr Mui refers me to HKSAR v. Tam Yiu Fai DCCC 784/2009.  The defendant possessed 3 false Hong Kong passports bearing 3 different names (Charge 1) and 3 forged Hong Kong Identity Cards in the same said names (Charge 2) at the boarding gate of the airport.  He was to distribute the 6 items to the users.  The judge took a starting point of 3 years for Charge 1 and 2 years for Charge 2 but passed concurrent sentences.  

False credit cards used with forged travel documents

12.In HKSAR v Kita Yasushi & Anor CACC 470/2006, the two applicants used a false credit card to purchase a Rolex watch (the charge of using a false instrument), which purchase was verified by a false passport (the charge of using a false passport), and possessing 3 false credit cards and the false passport.  The Court of Appeal regarded that the starting points should have been:

(1) 3 ½ years for using the false credit card;

(2) 1 ½ years for using the false passport; and

(3) 3 ½ years for possessing the 3 credit cards and the false passport.

13.The 3 offences were given partly concurrent sentences for their interlinking circumstances.  Upon pleas of guilty and totality, each applicant was sentenced to 32 months.

14.In HKSAR v Sun Chu-lei CACC 476/2002, the applicant was part of a well-organized syndicate with an international dimension.  He, together with two accomplices, came to Hong Kong from Taiwan. They carried 20 forged credit cards and 2 forged travel documents bearing corresponding names, clearly intended for defrauding local retailers. The Court of Appeal observed that, but for the intervention by the police, they would have used the cards to make purchases from luxury shops in Hong Kong.  Despite the absence of actual loss to the retailers or the credit companies, Yeung JA regarded a starting point of 5 ½ years “not a day too long”.

Sentencing this defendant

15.He came to Hong Kong from Malaysia for the specific purpose of committing the present offences.  He was to use the false name of Vincent Day in all the documentation.  His photo for making the forged travel document was taken only the evening before the offences.  The cards were custom-made for his exclusive use.  A small bill of $150 was clearly a test run ahead of more substantial spending with the cards.  This is a dynamic syndicate which engaged him to fly into Hong Kong at short notice to have 19 forged credit cards swiftly custom-made for his exclusive use to be corroborated by a forged British passport.  There were much planning and efficiency in it. 

16.Although laid out in 3 charges, the circumstances of each are closely interlinked.  I take 4 years and 9 months (or 57 months) as the starting point for each charge.  I reduce it by one-third due to the plea of guilty.  There are no other mitigating factors.  His sentence is each 3 years and 2 months (or 38 months) on a concurrent basis.